A Lawsuit in the Twilight

Bath & Body Works Brand Management, Inc. (BBW) filed suit against Summit Entertainment, LLC (Summit) in United States District Court for the Southern District of New York yesterday seeking a declaratory judgment that BBW’s TWILIGHT WOODS line of products don’t infringe on the TWILIGHT vampire film series.  Apparently, Summit demanded that BBW cease use of the TWILIGHT WOODS mark and packaging, which Summit claimed infringed upon the design and color palette of its TWILIGHT movie promo materials.

For the non-lawyers out there, in a declaratory judgment (DJ) action the parties are reversed: the would-be-defendant files suit against the would-be-plaintiff asking the court to “declare” that the activities engaged in by the would-be-defendant are permissible under the law.  This usually happens when the would-be-defendant wants to get home court (pun intended) advantage and doesn’t want to wait to see if, when and where the would-be-plaintiff might file suit.  In order to have standing (legal basis) to file a DJ Action, the would-be-defendant must have a reasonable apprehension of being sued by the would-be-plaintiff.

Apparently, BBW’s TWILIGHT WOODS perfume came out this fall, right before the opening of the second TWILIGHT movie.  Summit apparently found this to be more than a mere coincidence, especially given some of the other similarities in BBW’s products to those offered by Summit.  Oddly, today’s news articles about this lawsuit failed to mention is that Summit apparently licenses the manufacture of its own line of TWILIGHT beauty products, which are sold on the website http://twilightbeauty.com/:

When one compares bath products vs. vampires . . .  who’s likely to be confused?  Is anyone?  Really?  I just can’t fathom it, no matter how hard I try.  That said, if the two are gonna do battle, I’m putting my money on the vampires (unless the bath products are garlic-based, in which case I just might change my mind).

However, when one compares competing beauty products, marketed under similar marks and imagery, well then it’s a whole lot easier to see how consumer confusion could result.  In fact, there are three separate Twilight Beauty lines: LUNA TWILIGHT, VOLTURI TWILIGHT and NOX TWILIGHT (nail polish).  A quick glance at the BBW’s TWILIGHT WOODS line and the LUNA TWILIGHT lines reveal similarities not just in the word marks, but also in the packaging designs used by each brand.  It certainly will be interesting to see where this one goes.

Watch out for vampires!  Turns out, not only do they wanna suck your blood, but they also may wanna steal your trademark.  Really though, be very careful when sending C&D letters — threatening legal action may cause you to be sued for declaratory judgment, often in a foreign (out-of-state) court.