The ruling, which came earlier this month, centred on Slep-Tone Entertainment, which lodged the Lanham Act complaint against Wired for Sound Karaoke and DJ Services, alleging that Wired’s karaoke shows used unauthorised “media-shifted” files copied onto computer hard drives from Slep-Tone CDs.
The Ninth Circuit affirmed an earlier decision from the US District Court for the District of Arizona, which said that Slep-Tone “did not state a claim under the Lanham Act because there was no likelihood of consumer confusion about the origin of a good properly cognisable in claim of trademark infringement”.
Section 43(a) of the Lanham Act sets out the remedies that can be sought when a trademark is infringed and introduces the “likelihood of confusion” standard for infringement of an unregistered trademark or trade dress.
The Ninth Circuit ruled that Slep-Tone’s theory, which argued that because the media-shifted files displayed its trademarks and trade dress when performed, consumers would be confused about their origin, “does not involve consumer confusion about the source of an appropriate ‘good,’ as that concept has been defined by the Supreme Court. Instead, it alleges possible confusion over the source of content.”
Although Wired may have created a new good by copying Slep-Tone’s CDs to hard drives, “it is still not a relevant good under the Lanham Act”.
Those who see Wired’s performances of Slep-Tone’s karaoke tracks would not be confused about “the source of the tangible good sold in the marketplace”, the Ninth Circuit ruled.