Warner Brothers Studio Faces Legal and Public Relations Nightmare

Amidst the current news reports that The Dark Knight Rises’ actor Christian Bale made a surprise visit to the survivors of the Aurora, Colorado theater massacre, was a curious comment:

“Mr. Bale is there as himself, not representing Warner Brothers,” reportedly said an assistant to Susan Fleishman, the executive vice president for corporate communications at the movie studio.

But why would the studio seemingly want to distance itself from Mr. Bale’s charitable and apparently welcome visit?  

To be sure, the movie studio has already made a substantial donation to the victims, and is obviously not callous or indifferent to the suffering caused by the worst mass shooting in U.S. history.

Carey Rottman with Christian Bale / Facebook

Rather, the answer may have more to do with the unfortunate position that Warner Brothers now faces from both a legal and public relations perspective.

First, the Warner Brothers’ “Dark Knight” franchise is regrettably forever linked as part of the Colorado shooter’s motives, as the suspect appeared in a Colorado courtroom earlier this week with hair dyed red and orange, reportedly claiming to police that he was the Joker character played by the late Heath Ledger.

Warner Brothers’ desire to at least try and keep some distance between itself and the tragedy to avoid civil liability is not based on paranoia.

Indeed, one of the shooting victims has already filed a lawsuit against the studio, alleging that the violence depicted in the Dark Knight films is a legally contributing factor to the shootings. (That same suit has also in turn blamed the lack of security at the movie theater, and the suspect’s doctor for failing to treat him properly).

Plaintiffs’ lawyers may want to take advantage of a reasonable cooling off period before firing off such lawsuits.  The criminal investigation has barely just begun, and will undoubtedly shed much more light on the suspect’s state of mind, motives and conduct in weeks and months to come.

It is worth noting that civil lawsuits blaming content creators for the criminal acts of deranged minds have a tendency to fail.  And, in fact, Colorado has precedent nearly on point:  Nintendo of America, Activision and Sony Computer Entertainment were named as defendants in a civil lawsuit filed by the families of the 13 victims killed in the 1999 massacre at Columbine High School in Littleton, Colorado.

That lawsuit was aimed at 25 entertainment companies in total and sought $5 billion in damages.  Ultimately, the case was dismissed by a Colorado federal court in March 2002, with the Court finding that the media and videogame companies could not have reasonably foreseen that their products would cause the horrific events that occurred in the Columbine massacre or other acts of violence.

"Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence," District Court Judge Babcock wrote in his opinion.

The "Trashing" of Coke: Product Disparagement or Free Speech?

By Panhard [GFDL  CC-BY-SA-3.0] / Wikimedia Commons

Are you legally permitted to depict your competitor's products in a heap of trash to make an environmental comparison? Coca-Cola doesn't think so.

The megabrand's trademark lawyers recently sent a cease and desist letter to a soft drink competitor called Sodastream, about its new, aggressive international advertising campaign.

Sodastream sells a variety of flavoring and carbonating devices that allow consumers to essentially create and bottle their own soft drinks.  Part of Sodastream's pitch is that it claims to be more environmentally-friendly than its pre-packaged soft drink competitors.

In 2010, after a successful IPO, Sodastream launched an international campaign purportedly aimed at raising awareness of bottle and can consumption. The campaign involves the display of 9-cubic meter cages in various countries, each containing 10,657 bottles and cans gathered by Sodastream from landfills. 

Begun in Belgium, the "Cage campaign" has since visited 30 countries with the message that the waste produced by one family over the course of five years from beverage containers – 10,657 bottles and cans – can be replaced by a single Sodastream bottle.

On its website, Sodastream makes the following environmental and competitive claims about its products:

Eirik Newth / Creative Commons

"One SodaStream carbonator makes 60 or 110 liters, equivalent to 170 or 310 aluminum cans! When empty, the carbonator is refilled and reused, ready to make more fizzy and tasty soda whenever you want it."

While Coca-Cola's demand letter is focused on allegations under South Africa's unfair competition law, the broader legal question is relevant within the U.S., as well.

Indeed, this question is particularly germane given Sodastream is apparently bringing its marketing campaign right to Coca-Cola's doorstep in Atlanta, Georgia.

Despite arguments that such advertising is protected free speech under the First Amendment, the use of a competitor's branded product in such a commercial manner may nonetheless be actionable under U.S. intellectual property law.

First, federal trademark law contains an anti-dilution provision, which prohibits the use of commercial advertisements which dilute a brand by "tarnishment." Dilution can be actionable even if the consumer is not confused as to the source of the goods being advertised.

Second, by creating a heaping pile of trash made up (at least in part) of Coca-Cola branded products, Coca-Cola could argue that there is an implied and unfair product and brand disparagement that harms its goodwill among consumers without justification or substantiation.

Sodastream would presumably counter by claiming that the Coca-Cola product is not being disparaged.  Rather, Sodastream could contend that it is merely engaging in a form of truthful, protected free speech that accurately demonstrates the environmental impact that canned soda has.

In the end, if ever litigated, the final outcome in the U.S. would turn on whether a Court would consider the Sodastream campaign a form of constitutionally protected free speech about the environmental impact of a competitor, or nothing more than trademark dilution and product disparagement by an overly aggressive upstart.

Kate Middleton's Family Website Examined for Compliance by Olympics

 Screenshot of PartyPieces.co.uk

In a stark reminder of just how seriously brand protection is being taken by London Olympics officials, even the party products website managed by the family of Kate Middleton is being scrutinized to ensure compliance with extremely strict branding guidelines, according to Time magazine.

The Middleton family's website, PartyPieces.co.uk, is advertising party goods under the heading “Let the Games Begin” and even had a ring toss game in the Olympic colors.

An official on behalf of the London Organizing Committee of the Olympic Games (LOCOG) said of the Middleton's website: “There are no infringements and the products are fine.  We will ask them to make minor changes to some copy.’’

Olympic enforcement officers have begun patrolling venues throughout the UK to ensure traders are not illegally associating themselves with the games.

A LOCOG spokeswoman reportedly said: “We will act if there is a commercial tie-in in any way.  We will ring and explain the obligations and most times this dialogue is friendly, people are usually doing it to be part of the fun, but companies are not allowed to promote an association with the Games if they are not a sponsor.”

UK Student Faces Extradition and 10 Years in US Prison for Aiding Piracy

By Hellerick (Own work) [Public domain], via Wikimedia Commons

The New York Times is reporting that the US Department of Justice is seeking to have Richard O’Dwyer, a 24-year-old college student from Great Britain, extradited on criminal charges of copyright infringement. The possible punishment: 10 years in a federal penitentiary.

In 2008, O’Dwyer first set up a website, TVShack.net, which allowed users to search for and link to other sites, including ones that the federal authorities argue showed pirated movies and television shows.  

The US government shut down TVShack.net in summer 2010.  But Mr. O’Dwyer was apparently unbowed.  TVShack.net had been growing in popularity, and it made about $230,000 from advertising over the course of two years, federal prosecutors claim.

“America? They have nothing to do with me,” Mr. O’Dwyer had declared, according to his mother.  He then subsequently reopened his site as TVShack.cc, which he reckoned was beyond the reach of the United States.  He was wrong.

A few months later came a knock on the door from the British police. A judge ruled that Mr. O’Dwyer would not be prosecuted in Britain.  Instead, the US Department of Justice would seek to extradite him.

Prosecutors also claim that O'Dwyer was well aware that the material was copyrighted.  They cite an announcement on TVShack that urged users to be patient with download times because they were “saving quite a lot of money (especially when putting several visits to the theater or seasons together).”

The British home secretary has approved the extradition order and reaffirmed recently that she would let the order stand. O’Dwyer has appealed and a hearing in British courts is expected this fall.

Who Owns Police "Mug Shots"?

Unless you are John Gotti or Robert Downey, Jr., if you have ever been arrested and had your police "mugshot" taken during routine booking procedures, you may find yourself staying up at night worrying about where that mugshot may someday end up. 

Depending on your level of notoriety, websites such as MugShots.com and TheSmokingGun.com are giving some people good reason to worry about just that.

MugShots.com calls itself a “search engine for Official Law Enforcement records, specifically booking photographs." While TheSmokingGun.com focuses on historical and "high profile" figures, some websites have been accused of "extortion" and "blackmail" for publishing mugshots of wholly private individuals who were -- at some point in their lives -- accused of crimes ranging from disorderly conduct to armed robbery.  Some of these sites will offer to remove your mugshot, for a fee of course.

Putting aside the thorny privacy issues involved, an intellectual property question has been raised:  "Are these mugshots in the public domain?"

The answer from an intellectual property practitioner's perspective is that mug shots are not necessarily in the public domain, and third party websites do not possess an automatic exemption from infringing otherwise validly owned federal copyrights.

According to the MugShots.com website, "originally collected and distributed by Law Enforcement agencies, Booking records are considered and legally recognized as public records, in the public domain." That site claims that it "republishes these Official Records in their original form ("as is") under the First Amendment to the United States Constitution, the freedom to publish true and factual information. Our intent is to provide a legitimate and useful service for both the private and public sectors."

MugShots.com goes on to say that "all information on the mugshot pages on Mugshots.com was originated [sic] with law enforcement agencies.  We publish the information "as is" and do not edit it."

There are several serious flaws with these legal arguments.

After 1976, the Copyright Act provided that copyright attaches automatically upon the creation of an original work that is fixed in a tangible medium of expression. After 1976, copyright protection is automatic and vests instantly in the photographer.

Therefore, after 1976, when a police officer or civilian photographer stood behind a camera and snapped a mugshot, it is that photographer who technically owned the copyright in the image the very instant it was created in tangible form.  Before that, much stricter copyright notice requirements applied, forcing many photographs published without notice into the public domain.

Elvis Presley in a 1956 mugshot/
Wikimedia Commons / Public Domain

If the photographer was an employee of the U.S. federal government, then the legal analysis ends.  The U.S. federal government has openly disclaimed any and all copyright ownership in its documents, including mugshots.  Therefore, such mugshots, once released, are freely in the public domain for copyright purposes, and can be reproduced, altered or used in any form without violating federal copyright laws.  (It is worth noting that a federal appeals court recently ruled that there is no Freedom of Information Act obligation for the feds to release mugshots).

However, thousands of the mugshots that appear on these sites appear to have been taken by photographers that were employed by state and local police and sheriff’s departments, and who took the photographs in the course of their duties.

In those cases, the individual photographers who took the mugshots presumably entered into an employment agreement assigning ownership of the photographic work product to their employers.  So whatever copyright inhered in the mugshots when they were first taken by the photographer would be assigned to the police department or municipality.

Further, each local municipality and police department has its own laws, policies, regulations dictating who now owns copyrights to the mugshots, and who can use or distribute them, and for what purpose.

Some local jurisdictions take the approach that mugshots are valuable to law enforcement only during ongoing investigations, and restrict access to them until the case is resolved.  Others take a more open approach similar to the federal government, and waive any copyrights they might otherwise have owned in these images, regardless of how they are subsequently used or exploited.  Others go even farther, and encourage the public viewing of these images as a deterrent.

So, if a local police department has not otherwise waived its copyrights to the mugshots, as a technical matter, for a website to display, reproduce them or alter them for commercial gain would likely constitute a prima facie case of copyright infringement.

Indeed, it is worth noting that such a site would arguably infringe upon every single aspect of the copyright statute – the right to display, reproduce and even modify/alter the images. For example, despite its own claim that the images are reproduced verbatim from government files, it appears that every single mugshot on MugShots.com contains an embedded watermark, which was obviously added later.  Such conduct could violate the federally-recognized copyrights of local police departments which have not otherwise disclaimed their copyrights in and to control how these images are altered or used to create derivative works.

What about Fair Use?

Fair use is a defense to infringement, not an automatic exemption.  Indeed, the Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.  This means that, in litigation involving allegations of copyright infringement, the defendant squarely bears the burden of raising and proving that his use was "fair" and not an unauthorized infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement.  If the work was not copyrightable, if the term had expired, or the defendant's work borrowed only a very small amount, for instance, then the plaintiff cannot even make out a prima facie case of infringement, and the defendant need not even raise a fair use defense. However, as discussed above, a prima facie case of copyright infringement could theoretically be asserted by a municipality or police department that had not otherwise waived its copyright to control the commercial exploitation of these images.  Whether or not such a case will ever be filed is currently unknown.

Unfortunately, for those arrested for disorderly conduct outside a bar twenty years ago, and who were mortified to discover their faces displayed on a commercial website and want to demand legal action under intellectual property laws, you will have to wait.  Under current federal copyright law, you probably don't have standing to sue on behalf of the copyright holders.

Why Don't Presidential Candidates Seem to Respect Intellectual Property?

Gage Skidmore / Wikimedia Commons

It seems like many candidates for President of the United States just don't seem to understand how to avoid being accused of copyright infringement.  Here are a few cases in point:

Presumptive Republican candidate Mitt Romney recently launched a YouTube campaign advertisement depicting President Obama, and using the song "Happy Together," without authorization from the songwriter.  The ad is pulled by YouTube as an alleged copyright infringement.  


Earlier in the race, Newt Gingrich used Survivor's "Eye of the Tiger" without permission and was sued for copyright infringement.  In 2010, Rand Paul received a cease and desist letter from Canadian rock band Rush's lawyers for similar behavior with respect to their songs.  And Senator John McCain was sued by Jackson Browne for using the song "Running on Empty" in his 2008 campaign.

Daniel Schwen / GNU Free Documentation License 

But artists aren't only targeting Republicans.  In 2008, President Obama's campaign received a cease and desist letter from duo Sam and Dave about the song "Hold On, I'm Coming."


NPR correctly points out that a blanket license from ASCAP/BMI/SESAC for the particular venue that the candidate is using may already license the song for the copyright royalties covering public performance.


However, not to be outsmarted, the artists have alleged a less clearly-defined trademark infringement theory.  They cleverly contend that the unauthorized use of their music falsely suggests endorsement, sponsorship or approval by the musician.


In any event, what the trend signifies is not so much that the Presidential candidates are a bunch of copyright thieves as it demonstrates that the legal lines between commerce, the First Amendment, politics and copyright/brand protection can be quite murky, as we have previously noted.

Off-Broadway Show Accused of Infringing Three's Company Copyrights

Public Domain / Wikimedia Commons

Playwright David Adjmi's off-Broadway play “3C” has been accused of being nothing more than blatant copyright infringement by DLT Entertainment, the company that owns the copyright to the popular 1970's television series.

According to a report in the New York Times, Adjmi received a detailed cease-and-desist letter from DLT Entertainment's lawyers, accusing him of copyright infringement, and listing numerous points of similarity between the play and the sitcom.  A stage adaptation of "Three's Company" is apparently in the works and DLT alleges that Adjmi's play was damaging to it.

According to the New York Times, Donald Taffner Jr., president of DLT Entertainment, said the company was “very protective of the overall brand” because the show continued to earn substantial revenues from syndication on TV Land and on home video.

3C used a scenario similar to that of "Three's Company," but explored darker implications of American culture in that period.  The now-closed production ran June 6-July 14 at the Rattlestick Playwrights Theater.

A representative for the Dramatists Guild was quoted in Playbill.com as saying: "the right of authors to make fair comment on pre-existing work (whether through parody or other forms of fair use) is a First Amendment safety valve in the copyright law, and one we wholeheartedly support, as do the courts. If the author contacts us, we will discuss the issue with him and see how we can help."

Adjmi's plight apparently caught the attention of those within the New York theater community, who cited the actions of DLT Entertainment as bullying (a common thread), stating that they believe that Adjmi's play clearly fell under the umbrella of parody — which is protected by the First Amendment.

Other playwrights have explored similar territory, including Bert V. Royal's Dog Sees God, which centers on the teen years of the Peanuts gang.

Tony Award-nominated playwright Jon Robin Baitz penned an open letter explaining why it was important that members of the New York theater community rally behind Adjmi's work and First Amendment rights, calling 3C "clearly and patently and unremittingly parody."

Playbill notes that Rattlestick's marketing materials never drew any direct links to 3C and "Three's Company," describing the play as being "inspired by 1970's sitcoms, 1950's existentialist comedy, Chekhov, and disco anthems," adding that it was a "terrifying yet amusing look at a culture that likes to amuse itself, even as it teeters on the brink of ruin."

"I am not a lawyer, but David may need one, and I am currently investigating the willingness of a respected First Amendment firm to take this case on pro-bono," Baitz stated in his open letter.

"That an Off-Broadway playwright should be bullied by a Wall Street law firm over a long-gone TV show, is, in and of itself, worthy of parody, but in fact, this should be taken seriously enough to merit raising our voices in support of Adjmi and his play, which Kenyon & Kenyon is insisting be placed in a drawer and never published or performed again.  Whether one appreciates the work or not is immaterial; the principle at stake here is a basic one. Specious and spurious legal bullying of artists should be vigorously opposed, and that opposition must begin first and foremost with all of us in the New York Theatre community."

Among the notable individuals to add their names in support were Stephen Sondheim, Tony Kushner, Andre Bishop, Joe Mantello, Terrence McNally, Kenneth Lonergan, John Guare, Terry Kinney, Stephen Adley Guirgis and John Patrick Shanley.

Sanctions Against "Rogue" Porn-Copyright Attorney Upheld by 5th Circuit

A federal appeals court has affirmed monetary sanctions assessed against an Intellectual Property lawyer who represents a maker of adult films in a series of copyright-infringement-by-downloading cases.

U.S. District Court Judge David C. Godbey in Dallas had ruled in January that attorney Evan Stone of Denton, Texas had abused the discovery process, and termed him a “rogue attorney" with "staggering chutzpah" in a blistering decision.

In a July 12 ruling, the 5th U.S. Circuit Court of Appeals  affirmed the District Court's sanctions levied against Stone.

Stone represents Germany’s Mick Haig Productions E.K. against a large number of unnamed "John Doe" Defendants who stand accused of downloading Haig’s “Der Gute Onkel” film without authorization. 

Stone, no stranger to controversy, was depicted strangling pirates near scantily-clad porn stars in a recent Dallas Observer article.

The District Court had appointed attorneys from Electronic Frontier Foundation and Public Citizen as "ad litem" attorneys to represent the interests of the John Doe defendants and it was these lawyers who had sought the sanctions in District Court. The sanctions included attorneys' fees of more than $22,000, and $500 per day for each day Stone failed to comply with a court order.

Stone filed an appeal to the 5th Circuit, arguing the sanctions were unjustified and that the court-appointed attorneys lacked standing to seek them.

The appeals court flatly rejected Stone's argument.  It specifically held that “no miscarriage of justice will result from the sanctions” that were imposed “as a result of Stone’s flagrant violation” of court rules.

The appeals court said Stone committed the violations by using the subpoena power of the court to find the identity of anonymous Internet users “then shaming or intimidating them to settle for thousands of dollars” each.

The appeal is captioned Mick Haig Productions E.K. v. Does 1-670, 11- 10977, U.S. Court of Appeals for the Fifth Circuit (New Orleans). The District Court case is Mick Haig Products E.K. v. Does 1-670, U.S. District Court, Northern District of Texas (Dallas).

The tactic of using the threat of John Doe subpoena discovery against pornography downloaders has come under recent fire in high-profile class action litigations against a number of adult film companies.

When Your Best Defense is a Really Stupid Offense Against an Internet Titan

What do you do when you thought it was a good idea to invest thousands of dollars in over 750 domain names that have "Google" in them, such as “GoogleGayCruises.com” and “GoogleDonaldTrump.com"? You apparently spend MORE money to hire a couple of lawyers to try and convince a federal judge that "GOOGLE" is just a generic term.  Oh, and you demand that the Court should cancel the world's most valuable trademarks so you can keep those domain names you worked so hard to cybersquat on register and use in good faith.

Fergie....David Lee Roth....Cher.....Ed Kowalczyk?

Henrik Dvergsdai / Wikimedia Commons

When band members strike out on their own and try to pursue a successful solo career, some have the good fortune of already having a cool name with loads of fan recognition. 

Consequently, their solo acts need little or no introduction to their fans. Notable examples include Fergie (Stacey Ferguson of the Black Eyed Peas), David Lee Roth (formerly of Van Halen), Morrissey (formerly of The Smiths), Ozzy Osbourne (formerly of Black Sabbath), and Cher (formerly of Sonny & Cher).

But some people just aren't so lucky, like Ed Kowalczyk (right). In the 1990's, Ed was the lead singer of a major band called "Live."  Live broke out with the 1994 album, "Throwing Copper," which spent a year on the Billboard 200 album chart before hitting the No. 1 position.

Live released seven albums in total, and sold tens of millions of albums and hundreds of thousands of concert tickets. The band's hit songs included "Lightning Crashes," "Lakini's Juice" and "Selling the Drama." Eventually, after a decade of living the drama, in 2009, Ed sought greener pastures.

Perhaps to remind fans of his current status, or perhaps to keep an association with his previous band, Ed ironically chose to call his new solo album “ALIVE." 

Further, Ed has allegedly billed himself as "Ed Kowalczyk of Live." But the band's other original members are reportedly attempting to put a stop to this form of self-promotion in a newly-filed trademark infringement lawsuit. 

Ed's self-promotion is likely to cause consumer confusion, according to the Complaint.  Booking agents, theaters, arenas and the press are allegedly being deceived into thinking Ed still has affililation with the group Live.

Billboard reminds us of the large amount of litigation that followed the sad break-up of the original Platters.  Singer Herb Reed became the last original member of the group to leave the band in the early 1970's and afterwards, the company (Five Platters Inc.) that was formed by the original members, hired a new member to continue on as a new Platters group. That fateful decision led to four decades of litigation which culminated just a few months ago when a judge ruled, "'Only You,' Herb Reed, have exclusive rights to the mark."  Herb Reed then died.

The Hollywood Reporter analogized this particular breakup to an ugly divorce. Billboard correctly points out that the ultimate legal analysis often comes down who has continuously exploited the band name and who is recognized by the public as holding the greatest claim to the mark.

Source:  Ed's Website

Here, the nature of the band's previous business partnership will have an impact. Each of the four members of Live apparently signed an Employment Agreement with the company organized to run the band's services.  And that Agreement could spell bad news for Ed, who is facing statutory damages up to $2M in addition to a permanent injunction.

It's also worth noting that Ed has tried to sell coffee, too, under the brand "EDDIE'S COFFEE." Ed might need a new agent, in addition to a new trademark lawyer.

When "Groupies" Attack: A Somewhat Crowded Field

According to the Urban Dictionary, "groupies" are individuals involved in obsessive adoration of entertainers such as musicians, actors, athletes, and even political figures. Typical "groupie" behavior is often juvenile, including even attacking one another or the very performer they supposedly admire.

A few companies have recently become involved in legal attacks on one another over who gets to own the word "groupie" and words that sound a lot like it in connection with emerging technologies.

In 2004, a Cambridge, Massachusetts company applies for "GROUPE" and "GROUPEE" in Classes 38 and 42 for online chat rooms and software.  It's domain name lives on as a music fan site, but its business doesn't.

Then in 2008, a New Jersey based startup applies for its own trademark registration on "GROUPIE" for computer application software for mobile phones in Class 9.  Groupie is apparently an iOS and web application that lets people create both public and private groups, and allows people to message back and forth and meet each other.  It has about 60,000 users so far.  

In 2011, GroupMe launches after winning TechCrunch Disrupt’s hackathon.  It is an application resident on iOS, Android, Windows Phone 7, BlackBerry and the web, and is more focused on private group messaging.  According to one report, GroupMe has become one of the darlings of the fast-growing group messaging application market, getting $10.6 million from Khosla Ventures and lots of press for its products, which just got an update to version 3.0.

Part of Specimen Submitted to Trademark Office

A tipping point is reached when GroupMe files for a federal trademark registration on its name, in connection with software capable of causing transmission of a message from a message originator to a group of recipients.  The legal dispute originates before the United States Trademark Trial and Appeal Board, when Groupie files an administrative Opposition Proceeding against GroupMe's pending application.  Now, the dispute has escalated into U.S. District Court in Manhattan, with GroupMe firing back, seeking a Declaratory Judgment of non-infringement from a federal judge to resolve the "cloud of uncertainty" hovering over the mark.

Add to the mosh pit Yawma LLC, an Oregon corporation, which in 2010 applies for "GROUPEES" for computer software website for flash sales of digital entertainment media including music and games in Class 9. Groupees.com successfully raises significant amounts of money for charity from many artists and supporters, and may have a viewpoint on all this, as well.

Source:  GoGiiGames

Finally, Shannon Tweed (from Family Jewels) has a mobile application game called "ATTACK OF THE GROUPIES" that can be played on iPads, iPhones or PC's (you just can't make this stuff up).

The lesson here is that distinctiveness is determined both by the relatedness of the mark to the product or service being offered under that mark, as well as by the number of similar marks for similar products.  

When numerous sellers of similar products use similar trademarks, those marks become difficult to distinguish and protect. Trademark professionals call this situation a “crowded field,” and it can present serious marketplace and legal problems, as is clear from the situation here. Absent a quick settlement, the parties may now spend years, and hundreds of thousands of dollars, litigating over who has the final right to legally own the mark.

Source: GreenGroupies Website

No word yet from the company that apparently owns the trademark for "GREEN GROUPIES" in connection with eco-friendly children's clothes on whether it will jump into the fray, just to keep things interesting.