Murder, tigers and… trade marks?

Murder, tigers and… trade marks?
21 Aug 2020

The hit Netflix true crime documentary series, Tiger King, is the global spectacle we didn’t know we needed, but now can’t stop talking about in a time when meaningful topics of conversation are few and far between.

The series is layered with drama, romance and deceit- and subplots that will most-likely give rise to their own spin-off documentary programs in the future. However, in terms of IP law, the trade mark dispute that unfolded between the Tiger King, Joseph ‘Joe Exotic’ Allen Maldonado-Passage, and his nemesis Carole Baskin adds more drama to the series.

The facts pertinent to the trade mark dispute can briefly be summarised as follows:

  • Joe Exotic was the owner of the G.W. ZOO in Oklahoma, USA – a facility renowned for housing several big cat species in abundance including lions, tigers and the crosses between the two, referred to as ligers and tilons.
  • Carole Baskin is a vocal animal rights activist and owner of BIG CAT RESCUE in Florida, USA which is a safe haven for big cats free from exploitation for commercial gain.
  • The two parties’ opposing ideologies towards big cats flamed the initial conflict between them, with Baskin going to great lengths to curtail Exotic’s big cat breeding operation.

In 2010, Exotic retaliated by opening a travelling big cat (and magic) exhibition named BIG CAT RESCUE ENTERTAINMENT in an alleged attempt to draw Google traffic away from Baskin’s BIG CAT RESCUE.

BIG CAT RESCUE CORP., with Baskin as the CEO is the proprietor of US federal trade mark registration no. 2918642  Bigcat Rescue1

The trade mark was registered on 18 January 2005 and in terms of the Nice Classification for goods and services covers class 36 in relation to Charitable Fundraising Services, class 39 Animal rescue services, and class 41 for Entertainment services, namely, animal exhibitions; educational services, namely, providing instruction in animal conservation and care.

Notably, the following disclaimer is entered against the registered trade mark: “No claim is made to the exclusive right to use BIG CAT RESCUE apart from the mark as shown”.

Disclaimers are normally entered in respect of words or phrases that are held by a given Registry to not be capable of fulfilling the distinguishing function of a trade mark and in effect bars the proprietor of a given mark from seeking to obtain an exclusive right to use all or any portion of the subject non-distinctive disclaimed matter.

This disclaimer in essence gives third-parties the right to use “BIG CAT RESCUE” in any other form other than in the stylised form protected by Baskin i.e. Bigcat Rescue1 without the fear of infringing on Baskin’s statutory rights.

Baskin proceeded to sue Exotic in 2011 for trade mark infringement using the common law principle of unfair competition where one trader misrepresents that his/her business is that of another’s or associated therewith. Given the aforementioned disclaimer against Baskin’s registered trade mark, she relied primarily on her common law rights, reputation and goodwill gained through use of the Bigcat Rescue1 trade mark. Among other things, Baskin alleged that Exotic’s use of the phrase BIG CAT RESCUE ENTERTAINMENT in conjunction with a photo of a snow leopard’s eyes was a misleading depiction and was confusingly similar to Baskin’s Bigcat Rescue1trade mark and served to dilute her reputation and goodwill in and to the trade mark.

Exotic and Baskin eventually settled the matter through a consent judgment (a judgement issued by a court based on an agreement reached between the parties to a matter) declaring that Exotic had infringed upon Baskin’s trade mark rights through his use of BIG CAT RESCUE ENTERTAINMENT in relation to his travelling big cat (and magic) exhibition and had engaged in unfair competition. Exotic was interdicted from using the BIG CAT RESCUE trade mark or anything confusingly similar thereto and ordered to pay a substantial sum to Baskin for damages and costs incurred.

A now famous meme can be found circulating displaying a screenshot from Tiger King with Exotic uttering the words “I’m never going to financially recover from this”. Although this quote isn’t in relation to the damages owing to Baskin as a result of the trade mark dispute per se, the lawsuit formed part of a chain of events that eventually lead to Exotic’s incarceration for attempting to hire an undercover FBI agent to murder Carole Baskin. If there’s one lesson we can take away from Exotic and his dealings it’s that, at the end of the day, trade mark infringement does not pay!

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Michael Marki
Michael Marki

Michael Marki is a candidate attorney at KISCH IP's trade mark department. His qualifications include: BSc Genetics & Biochemistry (University of Pretoria) LL B (University of the Witwatersrand)

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