More Intellectual Property Fights Over Who Gets To Do What In New Orleans And Mardi Gras

from the 'tit-rex? dept

Thu, Sep 15th 2011 1:04am — Mike Masnick

I've never been to New Orleans, though, it's definitely on the list of places I'd like to check out one day. However, every time I hear a story about an intellectual property dispute involving New Orleans, it makes me wonder if that place is just different than pretty much the rest of the world. We've written in the past about the "Mardi Gras Indians" -- a group of guys who dress up in elaborate costumes during Mardi Gras -- and their attempts to copyright their costumes and stop people from photographing them, using some dubious theories.

Recently, Eric Goldman pointed us to a case involving a legal fight over a copied drink between two bars in the French Quarter in New Orleans. We've discussed in the past how some bartenders want more intellectual property on their drink recipes, and now we have an ongoing case that will explore exactly that.

But perhaps more ridiculous is this other story, sent in by Bill, about a legal dispute between Mardi Gras "krewes." Not being all that familiar with how all of this works, it took me a few reads to get this, but it appears that there's one famous "krewe" called Rex, which "crowns the king of New Orleans Carnival each Mardi Gras." Rex being Latin for "king." Get it? Then there's another "krewe" which appears to be a lot less well known, but which puts on miniature parades of "toy-like" shoebox floats. It goes by the name 'tit Rex, which is a shortening of "Petit Rex," meaning "little king" -- which is fitting for a parade of miniatures... while also being a sound-alike of the dinosaur T-Rex.

Apparently a lawyer representing "Rex" is claiming that 'tit Rex infringes on their trade name and are demanding the other group change its name. Honestly, the whole thing sounds pretty silly. It doesn't sound like anyone is particularly confused here. Either way, it's pretty amazing that there's so much focus on intellectual property where it's not clear any such thing is needed. Was there really some concern that the ability of "Rex" to crown a "king" was somehow limited by this other group?

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Filed Under: 'tit rex, copyright, mardi gras, new orleans, rex, trade dress, trademark

25 Comments

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mike allen (profile), 15 Sep 2011 @ 3:28am

Is not the Mardi Gras a once a year event and basically a giant carnival. What the hell are they fighting over a name used once a year for a carnival? there is surely no mileage financially in this for either of them. by that I mean they cannot make money from this event. I am sure that someone will correct me if I am wrong.
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snidely (profile), 15 Sep 2011 @ 3:48am

A drunken Mardi Gras participant in a hurry...
I actually think there is a substantial potential for confusion here. Mardi Gras is a big deal even if these particular krewes don't make a lot of money. What would happen if someone started 'Lil Facebook? You'd think it was endorsed or part of Facebook. Same principle here. A moron in a hurry might think that 'tit Rex's show was a part of or a spinoff of Rex's show.
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wnyght (profile), 15 Sep 2011 @ 4:54am

I'm from New Orleans. The krewes do make money on their club memberships. All the people seen on the floats paid money... and depending on which krewe, ALOT of money to be there. Each krewe is almost like a family, same families each year for the most part, past down generation to generation. It would be like someone starting a lil Masons club, or a lil american legionnaires. It's stealing the name of an organization that's been around for decades. (Side note: being from New Orleans, I've never heard of the krewe 'tit Rex)
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abc gum, 15 Sep 2011 @ 5:15am

Flaming Homer vs Flaming Moe
These people could learn a lot from cartoons.
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Peter, 15 Sep 2011 @ 5:19am

Copyright on drinks
There can only be a finite combination of different ingredients.

If I wrote a programme that printed every possible combination, can I claim copyright for any new drink?
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Anonymous Coward, 15 Sep 2011 @ 6:02am

Recently, Eric Goldman pointed us to a case involving a legal fight over a copied drink between two bars in the French Quarter in New Orleans. We've discussed in the past how some bartenders want more intellectual property on their drink recipes, and now we have an ongoing case that will explore exactly that.

But perhaps more ridiculous . . .

Did you even read the opinion you linked to? I just read through Judge Feldman's opinion, and for the life of me, I don't see how the Hand Grenade case is "ridiculous." Are you just in FUD-spreading-auto-mode, or do you actually have an argument?
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Chuck Norris' Enemy (deceased) (profile), 15 Sep 2011 @ 6:24am

Re:
Why don't you argue why it isn't ridiculous? Oh...you'll just say it isn't and throw in an attack on Mike with no basis...WHICH IS EXACTLY WHAT YOU ACCUSE MIKE OF DOING!!!
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abc gum, 15 Sep 2011 @ 6:33am

Re:
I recall at least one case where a court ruled that one can not claim copyright upon a recipe. One can claim copyright upon the presentation of said recipe. I would guess that there have been additional cases which resulted in similar rulings.

How then is the claim of copyright upon a recipe not ridiculous? Real world examples would be nice.

btw: IANAL.

http://www.partridgeiplaw.com/seinfelds-sneaky-recipes-survive-second-circuit-tasting-copy right-dispute
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Anonymous Coward, 15 Sep 2011 @ 6:33am

Re: A drunken Mardi Gras participant in a hurry...
Agreed. If I saw "tit rex" I would certainly think they are related to the Rex Krewe in some fashion or another. Considering how important some of these Krewes are, a little protection of the name is a reasonable thing to avoid confusion.

Remember Mike, name confusion isn't just about profitable enterprises.

As for the rest, I have to agree with other anonymous coward. I am not sure why you are so dismissive of the drink thing. It's a very reasonable thing, especially when you consider it isn't just the content of the drink, but also the presentation, the "yard" glass, and other features of the branded product. Why you confuse this with cases the revolve only around a drink mix is beyond me, except perhaps that you are so pressed to find something to slam that you aren't even bothering to understand the complaint as filed. Heck, this one is in relatively plain english, even you can understand it.

So I would say that in this case, you are wrong on Rex, and wrong on the drink, and I have to wonder what else you got wrong that we haven't caught yet this week.
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Not really TAM, 15 Sep 2011 @ 6:34am

Two quotes from the story:
"it took me a few reads to get this"
"It doesn't sound like anyone is particularly confused here."

I suppose we can blame a lack of sleep based on the posting time.
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Anonymous Coward, 15 Sep 2011 @ 6:47am

and then there's t-rex of 65 million years ago.....
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Anonymous Coward, 15 Sep 2011 @ 6:54am

Re: Re:
If you read the complaint as filed, you will see that it isn't just about the recipe (although it is part of the deal), but it also includes everything from the type of glass used to serve (yard glass) and the design of said yard glass.

It is also significant and key that the purported infringers are ex-employees of the plaintiff, and that in moving to a new company, completely re-oriented that company to use the same business model / product.

There appears to be claims on both the product and it's presentation, and perhaps the combination thereof.
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abc gum, 15 Sep 2011 @ 7:00am

Re: Re: A drunken Mardi Gras participant in a hurry...
If I saw "tit rex" in relation to Mardi Gras, I would think it had something to do with beads.
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abc gum, 15 Sep 2011 @ 7:09am

Re: Re: Re:
"it also includes everything from the type of glass used to serve (yard glass) and the design of said yard glass."

Oh, I see ... no one else is allowed to serve beverages in a yard glass which was probably available upon the free market, or did I miss something here?

"It is also significant and key that the purported infringers are ex-employees of the plaintiff, and that in moving to a new company, completely re-oriented that company to use the same business model / product."

Did they sign a non compete?

"There appears to be claims on both the product and it's presentation, and perhaps the combination thereof."

Possibly, but calling it ridiculous is not FUD, as claimed.
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The Groove Tiger (profile), 15 Sep 2011 @ 7:23am

Re:
Or we could think it was finished before and it's set to auto post at a certain time of the next day.
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Anonymous Coward, 15 Sep 2011 @ 7:33am

Re: A drunken Mardi Gras participant in a hurry...
I don't think "a moron in a hurry" is the legal criteria for trademark confusion.

Will "Rex" be suing any producers of the play "Oedipus REX" or any museum showing a "Tyranasaurus REX" next?
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Anonymous Coward, 15 Sep 2011 @ 8:01am

Re:
The Krewes are not just limited to Mardi Gras. It is the anchor of the social calendar with Mardi Gras as the peak of the social season. These people pay lots of money to do this. Every person you see on the float paid to be there and also paid for all of the throws they toss.

Rex goes back to the origins of Carnival. A French king was coming and the people needed a way to determine who would meet with him. The krewe of Rex was the way to determine who would be the "king for a day". The krewe of Zulu was created as an ironic parody response to Rex.
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Anonymous Coward, 15 Sep 2011 @ 10:03am

Re: Re: Re: Re:
No, actually the yard glass is custom made, a specific design, similar in manner to the packaging of a product.

As for the rest, Mike seems to not even grok the basics, it appears he either didn't read the complain or was in such a rush to do the anti-patent anti-copyright thing on adult beverages that he didn't bother to consider the rest of the case.

That is FUD. It's also bullshit.
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Jacob, 15 Sep 2011 @ 3:29pm

As a lifelong resident of New Orleans (save for a few months following Katrina, of course), I can see some validity to both of these complaints.

The "Hand Grenade" drink is one of the better known novelty cocktails on Bourbon Street, and it has a number of distinctive components (a particular type of novelty cup, explosion-themed marketing, even advertisement by some poor sap in a high school mascot-style hand grenade suit) which I've seen mirrored in the more recent drink offering by the newer competitor. I'm not enough of a legal scholar to say whether an alcoholic drink recipe is subject to IP protections, but there is little question that the newer drink is seeking to deliberately confuse the two.

As for Rex: Mardi Gras krewes are in many ways a holdover from pre-civil war Southern high society. Local community and social leaders with more money and social grace than sense tend to be involved in them, but it is undeniable that they've had a great impact on New Orleans culture, and that they've developed distinctive traits over the years. I personally admire 'tit Rex as a way of poking fun at the rather stolid old-money krewes, but it's also the case that they've appropriated many aspects of Rex's distingui9shing features, in a way which could plausibly cause confusion among people unfamiliar with the krewes. I'd hope that 'tit rex would win their case, but I don't think it is entirely without merit. That said, the original Krewe of Rex has been around since 1872, so certain aspects of their regalia may be in the public domain by now. 'tit Rex may also be able to argue some protections as parodic speech.
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Anonymous Coward, 15 Sep 2011 @ 4:08pm

Another fought over drink out of NO is the Hurricane. The original drink recipe dates back to the 1800's but the drink was for some time typically served during Hurricane parties which is where it takes it's modern day name from.

Pat O'Brian's in New Orleans serves this drink in a distinctive glass, similar to but not the same as a snifter. For the party setting they have the humongous size complete with garden hoses for replacement straws.

Going outside the establishment means you can't take the glass with you and walk around and drink from it, because a city ordinance forbids that. Paper and Styrofoam ok, glass is not for safety reasons to protect those falling down drunks. Glass doesn't usually survive in one piece when the street is brick.

The name Hurricane signifying that drink was in a legal dispute as in other parts of the state, the name became the defining nick for the drink of that particular concoction, much the same as Xerox became a term to copy from a trademark name.

Mardi Gras pulls in lots of money every year for the city and surrounding small towns. Hotels, restaurants, The French Quarter spending all total up.

The krews of the parades work near year round on the costumes that are made, you could say they are hand crafted, by the individual and be dead on target with that. Some of the costumes are worth $1000s of dollars. Even the designs of those have been fought over the years, mostly in vain.

As has been stated by others the Krews are generally generational in the nature when it comes to the parades and floats. People setup ladders along the parade routes and claim areas the same way, by the family, over the generation.

It's a big thing in NO and with good reason. They put on quite a show. I've seen a many.
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abc gum, 15 Sep 2011 @ 6:01pm

Re: Re: Re: Re: Re:
FUD refers to fear, uncertainty and doubt. How is this, exactly, any of these things?
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Christian Roselund, 21 Sep 2011 @ 5:37am

That different...
The author's introductory statements and perspective are interesting. While not a native, I lived in New Orleans for eight years. It is not that it is that different from the rest of the world. It is very different from much of the dominantly Protestant, Anglo United States.

There are many things in New Orleans whose value cannot be measured in their economic output, and that is another thing that distinguishes it in an increasingly commoditized American culture. That is also one of the things that makes the less tangible and measurable aspects of quality of life so high there.

Unfortunately for the author, this doesn't fit easily into a legalistic, economic equation.
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Dexter Methorphan, 28 Sep 2011 @ 4:31am

Re: Flaming Homer vs Flaming Moe
They should definitely drink more cough syrup.
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Michael Dominici, 9 Feb 2012 @ 8:53am

???
First of all REX is a carnival club and a parade. They own that and have that. Nobody is bitching about the fact that we have two parades this year called Orpheus. 'tit Rex if anything is flattering REX and poking fun of it at the same time much the same way as the minime character in the Austin Powers films. REX is a pompous, humorless parade that has the audacity to behave as some sort of local royalty when in fact they are nothing but a brazen display of the Old Money 1% stingy shitbags that embarrass our city every year by annointing some wretched old man as their king and some teenage white girl as their queen. They should get a clue before they stomp on a mini krewe!
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Richie, 9 Feb 2012 @ 10:42am

Re: Hurricanes and 'tit Rex
The Hurricane was invented during World War II, not the 1800s, and they basically do know the complete history of it.

The 'tit Rex krewe is satirical, and trust me, NOBODY in this town would think they're a sub-krewe of Rex. Everybody is wondering why Rex decided to be such dicks about the name. (It's been changed, BTW, with an upside-down E "schwa" between R and X, so, it's not Rex anymore.)

those people who stake claims along the parade route, and bring in ladders so they can catch the throws better than everyone around them? Everyone hates them. Not a cherished tradition, just an annoying one.

And everybody is annoyed by Rex, which is huge and not creative and very dull, and they have the most boring throws.

Mardi Gras is a big deal, but the krewes themselves don't make money. that's not the point.

Whatever.
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