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Hau5 of Mau5: Deadmau5 and Disney in a Trademark Battle

By James West

The electronic dance music (EDM) artist's attempt to trademark his "Mau5head" sparked a legal battle with Disney in September. Deadmau5 (pronounced "Dead Mouse", a.k.a. Joel Zimmerman) attempted to register his logo, which is a replication of the mouse head mask he wears on stage during his performances. This logo is essentially three circles connected together, forming a head and two ears - similar to the famed Mickey Mouse logo used by the Walt Disney Company. Similar enough, in fact, for the latter to file an opposition to the registration. According to Zimmerman, Disney alleges that the trademark would be confusingly similar to its own Mickey Mouse logo.

Legal Background for Disney's Claim Against Deadmau5

The primary federal statute regulating trademarks is the Lanham Act, which states, in regards to trademark infringement, that any person who uses in commerce any word, term, name, symbol, or device, or any combination thereof which is likely to cause confusion shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such an act. 15 U.S.C.A. ยง 1125. In a series of tweets on the artists' Twitter page, Zimmerman complains that "Disney thinks [consumers] might confuse an established electronic musician/performer with a cartoon mouse." Zimmerman is oversimplifying here, as consumer confusion, while a factor, is not determinative when deciding if a trademark is confusingly similar to a preexisting trademark. This "likely to cause confusion" standard has been further extrapolated on by the courts. However, there is no bright-line rule. Even Judge Friendly, when establishing a list of factors to be weighed when determining the strength of the prior owner's chance of success when claiming infringement, wrote that the court may still take other variables into account. Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 495. Friendly's factors included the strength of the mark, the degree of similarity between the two marks, and the sophistication of the buyers. Id.

Disney's Likelihood of Success in its Claim Against Deadmau5

While Zimmerman's mark does have its differences from the traditional Mickey Mouse logo, such as a large smile on the face of the mark, ultimately the factors appear to weigh in Disney's favor. Disney's mouse logo is exorbitantly strong. It would not be remiss to say that it is one of, if not the most, recognized and popular symbols in modern culture, and has been so since the 1930s. It appears everywhere, on every type of merchandise available - from toys, to t-shirts, to pancakes, to car decals, to kitchen appliances. The Walt Disney Company is the second largest broadcasting company in the world, and its use of the mouse head logo is international household knowledge.

The marks are somewhat similar. Both contain three circles forming a head, with two ears and a face. However, Deadmau5's logo is distinct in that it has a large, toothy grin spread across the face, with two eyes with "X's" as pupils. Disney's mouse head logo contains either Mickey's face or no features at all. In this element they are distinguishable, however, they may be similar enough to affect the weight of other factors. While there seems to be no evidence of actual confusion, at least there has not been any presented yet, the sophistication of the buyers is a crucial factor to consider. Deadmau5 is by no means a household name, gaining his popularity in the realm of the EDM subculture. It is unlikely that unless someone is involved with the industry, or is a young adult who is aware of the subculture or partakes in it, has heard of Deadmau5. Even less likely is someone able to identify a piece of music created by him. On the other hand, even young children (and their parents) know the distinct Disney logo. There is a possibility that these buyers, not being aware of EDM or Deadmau5, could confuse the logo as being related to Disney in some way. The Deadmau5 logo does bear the distinct three circles that have been closely associated with Disney for so long. A child or parent, two groups likely to buy Disney products, could falsely presume something that bears the Deadmau5 logo is related to Disney in some way. While whatever type of product might bear both logos may be questionable, the possibility nevertheless exists.

In short, the possibility of Zimmerman prevailing is there. Of course, the court may consider other pre-established factors, or even factors that have not previously been considered. The analysis would then, of course, change; possibly even in favor of Zimmerman. However, the sheer strength and popularity of the Disney logo, combined with the similarity of the two products, weighs in favor of Disney.

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