Wyrd Trade-mark Lawsuit

According to the CBC, a Winnipeg folk music group called Wyrd Sisters is suing Warner Brothers and British rock groups Radiohead and Pulp for $40 million, and is trying to block the latest Harry Potter movie, the Goblet of Fire, from being shown in Canada.

The Wyrd Sisters allege that the Harry Potter movie, which is due out next month, contains a scene with a band called the Weird Sisters. Members of the Radiohead and Pulp rock groups were asked to be in the film to be the Weird Sisters (which is what J.K. Rowling called the band in her novel).

Apparently original Wyrd Sisters singer Kim Baryluk has been quoted as saying: “[Harry Potter] is so much more huge than us in their reach that we’ll go out on tour a month after the movie comes out — and we’ll go all over to Australia, to New Zealand, and people will wonder who are these strange people stealing the Harry Potter name?”

I can sure appreciate that concern; having a name for 15 years and then there being some confusion as to whether you’ve stolen it from a new release movie. But wouldn’t that still be the case even if the movie didn’t come out, since J.K. Rowlings used Weird Sistes as a band’s name in her book (Goblet of Fire was published in 2000)?

Unfortunately, it doesn’t appear as though the folk group has registered their name as a trade-mark with the Canadian Trade-mark Office. Neither could I find a registration with the U.S. Trademark Office. If that is the case, then any trade-mark infringement claim that the folk group might have would probably be limited to a common-law action for passing-off - where the group will need to establish good will or reputation in their name and prove that there was a misrepresentation resulting in confusion or likelihood of confusion.

According to Xfm Online, Warner Brothers insisted that the Harry Potter band won’t be referred to as The Wyrd Sisters in the film.

Update:

See also the very recent Globe & Mail article:Little magic in new Potter film for Winnipeg group.

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