K&K Promotions Inc. failed to provide enough evidence that Disney overtly tried to confuse consumers into thinking the famous stuntman was associated with or endorsed the film, Judge James C. Mahan in the U.S. District Court for the District of Nevada ruled. The court also dismissed claims that Disney violated K&K’s right to publicity for Knievel intellectual property.
Disney in “Toy Story 4” depicted Duke Caboom as a toy version of a Canadian motorcycle daredevil known for death-defying jumps. K&K alleged that the character, voiced by Keanu Reeves, was confusingly similar to Knievel, down to his stunts, jumpsuit, commercials, and action figures.
Duke Caboom’s role in the film passed the two-pronged test set out in Rogers v. Grimaldi, Mahan said. The test is applied to expressive works to balance potential trademark infringement with First Amendment rights.
The court found that Disney met the low standard for proving that the alleged allusion to Knievel has artistic relevance to the film. To pass the threshold, Disney had to show that the artistic relevance “merely must be above zero,” Mahan said. Duke Caboom’s substantial contributions to the plot of the movie met the standard, Mahan said.
The use of Knievel’s trademarks is not enough evidence to prove likelihood of consumer confusion, Mahan said, adding that there are enough differences between the animated stuntman and the real person to avoid confusion.
Duke Caboom’s different facial hair, name, hair, jumpsuit and backstory, all make the character separate from the actual stuntman, Mahan wrote.
Mahan also ruled that Disney’s animated toy is sufficiently transformative, dismissing K&K’s claim that Disney violated its right to publicity.
Kemp Jones LLP represented K&K. Greenberg Traurig LLP represented Disney.
The case was K&K Prods. Inc. v. Walt Disney Studios Pictures, D. Nev., No. 2:20-CV-1753, 9/23/21.
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