The IPKat likes being immortalised as a cartoon character. The same, however, cannot be said for teenage Canadian popstar Justin Bieber. On 8 February 2012, RC3 Inc, a mobile game development company, released an mobile phone App called ‘Joustin Beaver’. On the App's website, the game is described as follows:"International SUPERSTAR Joustin’ Beaver needs your help!
He’s floating down the river on a world tour to meet as many fans and sign as many “Otter-graphs” as he can. But the evil “Phot-Hogs” will stop at nothing to get a photo of JB when he least expects it.
Help Joustin’ Beaver navigate the river, sign “Otter-graphs,” and knock “Phot-Hogs” into the river with his lance.If the “Phot-Hogs” float past JB, they’ll snap a scandalous photo for the front page of their website. Then it’s game over. Remember, the farther you go, the more famous you become and the more difficult it will become to avoid the “Phot-Hogs.”
One more thing, do not let JB get caught up in the “Whirlpool” of success or you could both spin out of control!
Try to get as many fans as possible and pretty soon you’ll be making gold and platinum records, accepting prestigious awards, and even becoming a “Beaver God!”
Mr Bieber was not impressed. In fact, on 13 February 2012, his lawyers sent a cease and desist letter to RC3 Inc. Here is an extract from the letter:
"The exploitation of the App is a direct and blatant infringement of our Client’s right of publicity. Exploitation of our Client’s name, likeness, image and renowned reputation in the industry to promote, advertise and market the App falsely implied that our Client has granted you certain rights to do so which, as you know, is not the case. These flagrant and conscious infringements of our Client’s rights may further constitute a number of violations including: trademark infringement, unfair competition under the Lanham Act and under state law, dilution, false designation of origin, passing off, misappropriation of name for commercial purposes, misrepresentation, violation of rights of publicity and interference with our Client’s contractual obligations to third parties".
Mr Bieber through his lawyers requested that RC3 immediately cease all exploitation of the App, remove the App from iTunes and any other website where it was available and provide an account of all the revenue which RC3 had made from the App. A response was requested within two business days.On 24 February 2012, RC3 filed a premptive action against Mr Bieber in which it wished (at [15] )to resolve any controversy between the parties and obtain declarations that it has not and will not, by continued use and promotion of the App, commit any of the violations alleged by Mr Bieber. In particular, RC3 sought declarations that its use of the App:
* did not infringe the trade mark or the trade dress rights claimed by Mr Bieber;The IPKat wonders how greatly his readers are impressed by this particular Beaver -- or whether the more discerning folk among them might just prefer Chipmunks ...
* did not dilute the trade mark rights claimed by Mr Bieber;
* did not create a claim for passing off actionable by Mr Bieber;
* did not misrepresent the trade mark rights claimed by Mr Bieber;
* did not create a false designation of origin thus violating the trade mark rights claimed by Mr Bieber;
* did not misappropriate Mr Bieber’s name, thus violating the trade mark rights claimed by Mr Bieber;
* was protected under the First Amendment of the United States Constitution; and,
* did not otherwise violate any of Mr Bieber's rights under federal or state law.
Merpel notes that Mr Bieber's lawyer has signed the cease and desist letter as 'DICTATED BUT NOT READ'. She wonders how legal regulators would view such a statement.