Breaking Bad News for Breaking Bad Fans

by Winthrop & Weinstine, P.A.
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When I was eight I had a perfect plan to create a multi-million dollar business: a company that sold pet turtle kits that came with miniature nunchucks, swords, and ninja costumes. Back then though it was more difficult to tap into Angel networks and, although great friends, my core group of investors unfortunately turned out to be less financially dependable as hoped. Thus, the venture technically never got off the ground.

In addition to capital, my eight year old self may have also overlooked a few aspects of intellectual property law, too. What I knew at the time though was that kids would want them, but that may havehad something to do with this hit cartoon, movie, and still-to-this-to-day-best-series-of-action-figures:

And this gets to one of the more basic pieces of advice you can give to businesses either when they are first beginning, or when they are developing new products: don’t take shortcuts. We all have had great ideas for something that we just know people would buy (or in the case of my eight year old self, a really, really, great idea). When you’re eight, you normally don’t follow through, usually because of financing issues (or, you know, because you’re eight). But even real-life, all-grown up businessmen have similar ideas, too. For example, Cliff and Norm’s bar (blogged about here) and Ricky Bobby’s Sports Saloon (blogged about here).

Unlike eight year olds, when adult businessmen have one of these ideas, one of three things normally happens: (1) a lawyer convinces them not to go through with it (no example), (2) a lawyer helps the client change their business plan sufficiently to where they believe the business benefits outweigh the legal risks  (Ricky Bobby’s); or (3) you thought about talking to a lawyer, but never got around to it (just guessing, but I’d put Cliff and Norm’s bar here).

Another example has emerged recently thanks to the rampant success of the television show Breaking Bad:

Its series finale was broadcast earlier in the month and if you’ve never heard anything about it, don’t worry. All you really need to know is that it involves meth and Albuquerque. The series was both set and filmed in and around the New Mexico city and while you might initially think the town would prefer not to be so intimately connected with a dangerous and illegal drug, it has been a financial boom. There are guided tours, crystal meth candy, donuts featuring the blue candy, and also crystal meth bath salts. Although Great Face and Body has been selling its “Bathing Bad” bath salts for years, Sony only recently contacted the owners to request that they obtain a license or cease their use, as shown below:

Sony does have a reasonable claim of infringement based on the logo and the manner in which the goods are advertised. It also helps that the official store sells fictional items from the show too, such as to go bags from the fictional Los Pollos Hermanos fast food restaurant and business cards for the local billboard attorney, whose slogan is “Better Call Saul.” It certainly is plausible for consumers to mistakenly assume that the owners of the rights to Breaking Bad had somehow licensed or were in some other way involved with the production or sale of the bath salts as well.

What makes this case interesting, though, is that the producers and actors apparently have embraced some of these products. The owner of Great Face and Body states that he had visited the studios and spoke with some of the representatives. In fact, the company ordered 450 bags to distribute at the wrap party. Similarly, actor Bryan Cranston gave the potentially infringing meth candy national media attention by distributing it on the David Letterman show to both the host and the band. According to an interview with other business owners, Sony Pictures has only contacted the seller of the bath salts, and not any of the other businesses profiting off Breaking Bad related memorabilia. The facts here may or may not be sufficient to show a defense based on acquiescence (See  Christian Broadcasting Network, Inc. v. ABS-CBN Int’l, 84 USPQ2d 1560 (TTAB 2007), TTABlogged here). It will be interesting to see how the filmmakers’ and actors’ interactions with the owners and their products affects Sony’s enforcement strategy (in addition to their decision, at least not yet, to pursue other parties).

Overall though, maybe this falls under a “calculated risk” strategies. Now that the show has completed, the popularity of these products may have reached its peak, along with the desire for related merchandise. Maybe Sony won’t pursue strongly because of that fact, or maybe Great Face and Body can stop the sales of the products (and maybe just sell blue bath salts under a different name). Just to be clear, there is still the risk that you could be sued for infringement, lose whatever profits you did make, and rack up a lot of legal fees.

Although, if you’re only 8 years old, you just might be able to get away with it…. Looks like I have another addition to my “if time machines become real” list…

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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