Before the end of last year, I wrote about obtaining trademark protection in a series of works. I used books as an example: while you normally cannot register the title of a single book, when you develop a series of books under the same title, that title develops trademark rights for which you can seek a trademark registration. Similarly, a TV show series can develop rights in the name when several episodes are released. Why do I re-bring this up?
A restaurant opened in Scottsdale not long ago called Twin Peaks. The name brings up some issues. First, there is a very well-known brewery in Tempe and Scottsdale called Four Peaks, named (presumably) after a local mountain with a prominent profile on the horizon (a friend suggested that Twin Peaks might just be half-size Four Peaks). Second, we all know the TV show Twin Peaks. My wife made the connection between the new restaurant and the TV show before she made the connection between the new restaurant and the brewery, which indicates the significance in the likelihood of confusion analysis of the mark’s literal element with respect to the mark’s services. When a mark is famous, identity of a second mark can create confusion even if there is a chasm between the goods and services.
So is there actionable confusion here? Not likely. The restaurant and the TV show are so different that crossover is unlikely. The Trademark Office apparently didn’t think there would be confusion, either. Twin Peaks the TV show is protected with federal trademark registrations – one for “entertainment services in the nature of a dramatic television series” and the other for a “series [note: a series] of video recordings featuring entertainment.” Twin Peaks the restaurant has a few federal registrations, and the Trademark Office didn’t raise the TV show’s marks against any of them during prosecution of the applications.