SW Legal Educational Publishing

Rock and Roll Museum May Not Be Trademark Heaven
Description Photographer's commercial exploitation of a photo of the Rock and Roll Hall of Fame, with that name attached, may not violate the trademarks attached to the name or the likeness of the building. Use of building likeness by trademark holder was inconsistent and name use may be fair use.
Topic Intellectual Property
Key Words Trademarks, Infringement
C A S E   S U M M A R Y
Facts Gentile, a professional photographer, sold a poster featuring a photograph entitled "Rock n' Roll Hall of Fame" and "Cleveland" of said building. The Museum sued Gentile contending that it has its registered service mark, "The Rock and Roll Hall of Fame" and its building design as trademarks and that Gentile's poster infringes upon, dilutes, and unfairly competes with these marks. District court granted preliminary injunciton against Gentile, who appealed.
Decision Vacated and remanded. The trademark holder failed to show a likelihood of success on its merits of its infringement claim, due to its inconsistent use of the museum's design to serve a source-identifying function. Not all inherently distinctive symbols function as trademarks. To be protected, designation must create separate and distinct commercial impression which performs trademark function of identifying the source of merchandise to customers. The trademark holder had been inconsistent in its use of the building's likeness. Further, the use of the name may have been fair use. Since there is not a strong likelihood of success on the merits, no injunction should have been issued.
Citation The Rock and Roll Hall of Fame Museum, Inc. v. Gentile Productions, ---F.3d--- (1998 WL 15548, 6th Cir.)
or
134 F.3d 749 (6th Cir., 1998)

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