Court Says EA Can Use The Word 'Dillinger;' Declares John Scalf's Trademark Claim Invalid
from the and-there-goes-your-whole-'business-plan' dept
John Dillinger's somewhat-related great-nephew (via a stepmother), John Scalf, is back in the news again. You may remember his lawsuit against EA Games (or not: it happened nearly two years ago).Quick refresher: EA's Godfather games feature tommy guns named after famed tommy gun enthusiast, John Dillinger. Scalf took issue with its use of the famous last name, threatening litigation unless EA promptly deposited millions of dollars into his account at the nearest un-robbed bank. EA considered his "offer" briefly before filing a suit of its own requesting permission to use Dillinger's name in its games.
The results are (finally) in and Scalf is (deservedly) on the losing end:
The court rejected the right of publicity claim, concluding that the Indiana post-mortem right of publicity statute isn’t retroactive and thus doesn’t cover Dillinger, and that (in light of the First Amendment) the “literary works” exception in the statute should be read broadly enough to cover video games.
The court rejected the trademark claim, finding that EA’s use of the name “Dillinger” was protected by the First Amendment, because it had some relevance to the plotline of the game and wasn’t “explicitly misleading” as to any possible endorsement by Dillinger, LLC.
It's a good start and maybe a sign that Scalf's coattail-riding days are coming to an end. The court's declaration that Indiana's unusual trademark law isn't retroactive should be enough to kick Scalf's litigious yearnings to the curb, and that seems to be really all he has going for him. Of course, we've seen the legal doors slam shut on a few other overactive players (Righthaven, the Winklevii), only to be pried back open moments later. I guess we'll just wait and see.
Maybe Scalf can secure his dubious legacy by turning this Dillinger quote into his "business" slogan:
My buddies wanted to be firemen, farmers or policemen, something like that. Not me, I just wanted to steal people's money!
Synergy!
