The Fascination! Newsletter was also the first on the fannish Web to bring you the news that Cirque du Soleil had lost its case to trademark the word “cirque” and to prohibit Neil Goldberg’s Cirque Productions (the presenters of “Cirque Ingenieux”) from using “cirque” in their name. (Whew! We broke a LOT of news this month!) We did a Google search on the judge in the case, Lloyd D. George, Federal District Judge of the District of Nevada and found that he has engendered plenty of controversy. Critics charge he treats Hispanic and other minority defendants with less leniancy than others. He also gets lots of ink from the “Don’t pay taxes because the IRS is an illegal entity and paying taxes is voluntary” folks for banning one of their favorite reference tomes. And for a Reagan-era appointed judge, one might have expected him to see it Cirque du Soleil’s (the “big business” in this case) way.
But his ruling seems to fall into line with other rulings on similar issues. Let’s take a look at some of the claims made in the case, as presented in the article written by Liz Bentsen of In Business Las Vegas, and comment a bit, shall we?
“The crux of Cirque du Soleil’s argument was that its company and performances had come to be known by the moniker “cirque”…”
–Hmm, that’s true. In our newsletter, we use “Cirque” to refer to “Cirque du Soleil”, though we’re speaking to a specific audience.
“The performance giant also claimed that Cirque Inc. aimed to capitalize on the popularity of Cirque du Soleil shows with similar performances.”
–Sounds true to me. Success breeds imitation. Trading Spaces or any of its clones, anyone?
“Cirque Inc., which does business as Cirque Productions and has offered a touring show called “Cirque Ingenieux,” argued that “cirque” is a generic word because it is the French word for “circus” and therefore isn’t a protectable trademark. Cirque Inc. also said that the “cirque” name is a term that has preceded Cirque du Soleil by hundreds of years and has been used to describe a type of circus popularized in Europe that doesn’t use animals and incorporates dance, visual arts and other art forms.”
–Historically accurate.
“In its suit, Cirque du Soleil argued that the moniker “cirque” is protectable as a trademark because it has become “synonymous with Cirque du Soleil.” “Due to extensive use, the Cirque mark has become well-recognized, famous and firmly associated with Cirque du Soleil and its performances in the minds of the American public,” the suit said.”
–I would have to say that’s true.
“The company produced consumer surveys to illustrate the point and also asserted that Cirque Inc. began capitalizing on the cirque name only after Cirque du Soleil became a well-known brand and intentionally copied the Cirque du Soleil look, confusing customers into thinking they were seeing a Cirque du Soleil show.”
–Got that right! How many times have we had to remind friends that Cirque Ingenieux (or something else that blew through town calling itself “Cirque something”) wasn’t Cirque du Soleil?
“The judge ruled: “If a foreign term is generic at the time it is introduced to the American consumer, the term cannot be subsequently acquired for exclusive use.”
–Not quite sure that was the case with the word “cirque” in the U.S. marketplace though. I think most Americans first hear the word “cirque” as part of the name “Cirque du Soleil.”
“In a ruling dated April 5, George said the only similarity between Cirque du Soleil’s trademarked name and the names used by Cirque Inc. to describe its business was “cirque”– a generic word. “The non-generic portions of the various marks are entirely dissimilar,” George ruled.”
–That would be true, too. This wouldn’t apply to “highly similar” names such as “Cirque du Rockeil” the Las-Vegas based Rocky Horror convention that got a cease and desist letter from Cirque du Soleil as we reported a while back.
“The decision prevents Cirque du Soleil from pursuing a trial to resolve disputed facts in the case and opens the door for the troupe to appeal the ruling to the 9th Circuit Court of Appeals in San Francisco.”
–Which, according to folks we’ve spoken with appears likely. There are wider implications here, one source noted.
Of course, if we hear of an appeal we’ll keep you informed.
