[co-author: Riley Smith]*
“I love reality TV!” Cue the eyerolls. For many, admitting to watching reality TV is often done begrudgingly or dismissed as a “guilty pleasure.” But why the stigma? Reality television has it all: drama, competition, social experimentation, talent, and—perhaps most relevant to trademark law—business opportunities! Since its inception in the early 2000s with trailblazers like Survivor and The Bachelor, reality TV has evolved into a highly profitable genre for both stars and producers alike. Entire brands have been launched with the cameras rolling.
This three-part article series will explore the intersection of trademarks and branding within reality TV, beginning with how reality shows themselves use trademarks. From there, subsequent articles will delve deeper into the nuances of trademarks in the world of reality TV, from the challenges shows face when featuring branded products, to the entrepreneurial journeys of reality stars who leverage their on-screen fame to build their own brands.
Every time I open Netflix or Hulu, it feels like there is a new reality dating show, nearly identical to the last one. This trend mirrors the heyday of cable television shows, when many daytime game shows seemed to follow a similar formula. Despite obvious imitation, reality shows have struggled to take legal action against copycats. This is because copyright law generally does not protect reality TV concepts, given that they often lack fixed script, plot, or structured narrative.[1]
When copyright law failed them, some reality producers turned to trademark law to protect distinctive elements of their shows. However, because trademark law governs words, phrases, and designs that indicate the source of goods or services, trademarks provide little protection beyond the show’s title or logo.[2] So while Warner Bros. can enforce its trademark rights against a third party using the BACHELOR mark or logo in media or on merchandise, it cannot enforce against spin-off dating shows that copy or borrow the format of its Bachelor show.
While trademark law cannot directly protect reality shows against copycats, it can help reality shows create and safeguard a distinct brand that may eventually have the strength to protect against infringers. For example, the show Survivor’s brand was strong enough to overcome a trademark infringement claim by the band Survivor, of “Eye of the Tiger” fame. The band attempted to enjoin the show from selling Survivor-branded merchandise, but ultimately failed because it was unable to demonstrate a likelihood of consumer confusion. The court found that the show’s merchandise featured a distinctive logo that would be recognized by consumers as representing the castaway competition show, making it unlikely that consumers would confuse their merchandise with that of the band.[3]
On the other hand, trademark law can operate just as powerfully against reality show brands, as seen in the case of reality stars Dave Sparks and Dave Kiley, also known as the “Diesel Brothers.” The Brothers were recently ordered to pay over $11 million in damages to the Italian fashion brand Diesel after a court found that their use of the Diesel name on apparel and other merchandise infringed upon the luxury brand’s trademark rights.[4]
These cases illustrate the delicate balance between entertainment and enterprise in reality television, setting the stage for our next article, in which we will explore how reality stars turn fleeting fame into full-fledged brands, and the role trademark law plays in that process.
[1] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. Inc., 499 U.S. 340 (1991), the Supreme Court requires that non-creative elements of a work be “selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship” to qualify as copyrightable.
[2] RDF Media Ltd. v. Fox. Broad. Co., 372 F. Supp. 2d 556, 563 (C.D. Cal. 2005), declining trade dress protection for Wife Swap’s concept of spouses from different families trading places.
[3] Sullivan v. CBS Corp., 385 F.3d 772, 777–79 (7th Cir. 2004).
[4] https://www.thefashionlaw.com/diesel-wins-11-8m-in-damages-in-diesel-brothers-trademark-case-2/
*Summer Associate
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