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Peeved with Biebs: Justin Bieber Sued over Joustin?ÇÖ Beaver Game App

Last Friday, app developer RC3, Inc. sued Biebs, aka pop star Justin Bieber, seeking the court?ÇÖs declaration that RC3?ÇÖs game ?Ç£Joustin?ÇÖ Beaver,?Ç¥ available for Android?ádevices and the iPhone/iPad, is protected under the First Amendment.?á In a February 13, 2012 demand letter to RC3, Bieber?ÇÖs counsel asserted that the app is a blatant infringement of Bieber?ÇÖs right of publicity and constitutes trademark infringement, trademark dilution, and other violations.

The game features a beaver sporting Bieber?ÇÖs (in)famous hairstyle.?á The beaver also wears a purple sweater which, as every Bieber fan knows, is his favorite color.?á (Important! ?áWe don?ÇÖt admit to being Bieber fans.)?á Joustin?ÇÖ Beaver must float down the river while signing ?Ç£Otter-graphs?Ç¥ and knocking evil ?Ç£Phot-Hogs?Ç¥ into the river with his jousting lance.

A press release for the game noted, ?Ç£We wanted to create a game that appeals to Justin Bieber?ÇÖs fans.?á He?ÇÖs a hero and adored by millions.?á It?ÇÖs important that ?ÇÿJoustin?ÇÖ Beaver?ÇÖ reflect that.?á Paparazzi are relentless creatures who are difficult to dodge.?á Just the other day the real Justin Bieber was harassed by an overly aggressive photog.?á They stop at nothing to get their shots and, therefore, make an easy and appropriate villain for our hero, Joustin?ÇÖ Beaver.?Ç¥

It?ÇÖs interesting that the admirers of Bieber decided to preemptively sue him, but presumably the demand letter, which was quite harsh in tone, did not sit well with RC3.?á Also, RC3 must see potential in its app, for it to choose to do battle with the Biebs and not merely agree to cease distributing the app.

To briefly comment on the trademark infringement claim, the court would likely find Joustin?ÇÖ Bieber to constitute a parody.?á Yet, there?ÇÖs no true ?Ç£parody defense,?Ç¥ and such cases fall every which way.

Humorous and non-crude parodies often escape a finding of trademark infringement, but courts typically analyze such infringement claims, as with all trademark infringement claims, by using a likelihood of confusion test.?á This includes a review of various factors including similarities of marks and products, strength of the plaintiff?ÇÖs brand, any intent to free-ride or confuse, and any instances of actual confusion.

David Bell is a partner in the Dallas, TX office of the law firm of Haynes and Boone, LLP. He is the chair of the firmΓÇÖs Social Media Practice. He may be reached at david.bell@haynesboone.com or 214.651.5248. Follow David on Twitter or add him to your LinkedIn network.

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February 2012