Suit
Claims That Stallone's Driven Isn't Entitled to the Title
By Denise Levin
An independent film company that released
a 1996 film called Driven has sued Warner Bros.
and Franchise Pictures, claiming Friday's release of
their SYLVESTER STALLONE picture by the same name will
cause confusion among the public and diminish the earlier film's
value.
But the federal suit by the independent film
company, Pacific Rim Partners, may have a tough time
proving that Driven, which starred CHAD LOWE,
has unique qualities that would entitle the word to legal protection.
Pacific Rim's lawsuit, filed Thursday
in the U.S. District Court for the Central District of California,
claims Warner Bros. and Franchise violated the
Lanham Act -- which prohibits false designation of origin,
representation or description -- and engaged in unfair competition.
Both ''the trade and public at large have come to and will continue
to identify the title 'Driven' as the motion picture
created and owned by plaintiff,'' the lawsuit states.
However, according to Imdb.com, the
Internet film database, six separate, unrelated films already
carry the title Driven, including the two at issue in
the dispute. Film titles are not copyrightable, and no laws
specifically govern duplicated use. There is, however, a system
of cooperation among studios, which register titles with the
Motion Picture Association of America's Title Registration
Office. Through that office, filmmakers can see if the title
they want for a project has been used or is being used for another
upcoming project, and can ask permission to use the title from
the studio that first used it. According to the MPAA,
Pacific Rim is not registered with the office, but Warner
Bros. and Franchise are.
Generally, permission is granted, especially
when the word or words in the title are generic. So it isn't
uncommon for films to carry the same titles -- The Patriot
[seven films], as well as Gladiator, Heaven Can Wait
and Road House [at least two films each]. Also, considerations
like how widely circulated the film is and other subjective
criteria are applied when determining if a title is being wrongly
used.
Veteran Hollywood attorney Robert Mirsch,
who is not involved with the Pacific Rim lawsuit, explained
that some films -- for instance, Some Like It Hot --
are so famous and have such unique titles that use without permission
might provoke action by a court. But more generic titles that
few people would automatically associate with a particular film
are difficult to defend on grounds of public confusion, Mirsch
said.
Franchise general counsel and executive
vice president Erick Kwak said in an interview Friday:
''We conducted a thorough analysis of the title and determined
that the title was, and is, clear for use and that the claims
in the lawsuit are without merit.'' Kwak said the analysis
process includes checking with recognized clearance houses for
a title's availability and its prior use, then discussing its
use with insurers to determine whether use might have implications
under the Lanham Act, and whether permission is required.
'It's not at all unusual for various films
to have the exact same title, and the majority of the time,
permission is neither sought nor required,'' Kwak said.
Kwak reiterated the rules regarding common use words,
and added that titles with a new word or a string of words together
that had no meaning until the film came along -- such as Tron
or Star Wars -- may have protection.
Pacific Rim's Driven has won
awards at several film festivals and gained critical acclaim,
according to the lawsuit. Since the beginning of April, the
studios behind STALLONE's film have marketed the new
Driven, the lawsuit says, and ''have knowingly, willfully
and deliberately sought to capitalize upon the distinctive quality
and secondary meaning established by plaintiff and its title,
and have intended to wrongfully, and without plaintiff's consent,
capitalize upon and profit by the consumer confusion they have
created, to the detriment of plaintiff and its business.''
A message left Friday for Pacific Rim's
attorney, Scott A. Meehan, was not returned. The lawsuit
seeks an injunction restraining the studios from using the name
Driven and at least $1 million in damages.
Sounds like another "worthy"
lawsuit. - Craig Zablo
