Metropolitan News-Enterprise

 

Tuesday, November 15, 2022

 

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Ninth Circuit:

‘Punchbowl News’ Does Not Infringe Upon Trademark of Online Event Service

 

By a MetNews Staff Writer

 

“Punchbowl News,” an online publication dealing with politics and government, does not infringe on the registered trademark “PUNCHBOWL” owed by Punchbowl, Inc., a technology company that provides online services relating to parties and celebrations, the Ninth U.S. Circuit Court of Appeals held yesterday.

Circuit Judge Daniel A. Bress authored the opinion which affirms a July 16, 2021 summary judgment granted by District Court Judge Stephen V. Wilson of the Central District of California in favor of the defendant, AJ Press.

In rejecting contentions put forth by plaintiff Punchbowl, Inc., headquartered on Ventura Boulevard in Sherman Oaks, Wilson found the double-barreled test for overcoming an infringement claim was met, saying:

“[N]o reasonable juror could find that Defendant’s use of Plaintiff’s mark either (1) is not artistically relevant to the underlying work, or (2) explicitly misleads consumers as to the source or content of the work.”

 

Website’s logo

 

Derived From Nickname

In explaining the artistic relevance, he noted that the defendant’s District of Columbia-based website takes its name from the Secret Service’s nickname for the Capitol, “Punchbowl,” and the website’s logo is the Capitol, upside down, with punch in it.

He explained that “Defendant’s underlying work focuses on people and events in Washington D.C., including politicians, lobbyists, and aides—i.e., individuals whose lives are largely centered around the Capitol building.”

Finding confusion unlikely, Wilson wrote:

“[T]he services operated by Plaintiff and Defendant are not similar….Defendant operates a news publication; Plaintiff operates a technology company that creates online invitations and greeting cards….

“Plaintiff argues that both parties’ services in this case are ‘targeted at the same general category of consumers.’…No reasonable juror could agree.”

Bress’s Opinion

Agreeing with Wilson, Bress said:

“[W]e hold that AJ Press’s use of the Punchbowl Mark is sufficiently expressive to merit Fust Amendment protection, and thus application of the Rogers test. Though AJ Press is a commercial enterprise, it is selling core Fust Amendment-protected information. The content of its publication, and its use of ‘Punchbowl’ in the name of its brand and publications, is expressive. AJ Press specifically chose the name ‘Punchbowl’ to convey the D.C. insider perspective of its news material. The word ‘Punchbowl’ connotes a gossipy setting (e.g., standing around the punchbowl), and, in the context of Washington, D.C. political reporting, talebearer ‘buzz’ about political happenings. The name ‘Punchbowl’ also reflects a more spirited, ‘punchy’ tone consistent with the nature of the fast-moving and tumultuous political topics on which AJ Press is reporting.”

He observed that “the parties’ uses of the name ‘Punchbowl’ are quite different, and declared:

“[N]o reasonable buyer would believe that a company that operates a D.C. insider news publication is related to a ‘technology company’ with a ‘focus on celebrations, holidays, events and memory-making.’ We conclude that, under our precedents, AJ Press’s incorporation of the Punchbowl Mark in its news publication’s name is not explicitly misleading.”

That, he said, disposes not only of claims under the federal Lanham Act but also those under California law. Punchbowl, Inc. had claimed a violation of the state’s Unfair Competition Law.

The case is Punchbowl, Inc. v. AJ Press, LLC, 21-55881.

 

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