Ssenkahdavic said: In a World where Apple can win a Patent Suit on "Look and Feel" I wouldnt be so quick to say Sony will definitely lose this.
Hell, just because the Wii was in the commercial might push this over the edge, though it shouldnt.
Bridgestone having the commercial with him scrubbed out that quickly, might be seen (but shouldnt be) by a judge that they knew what they were doing was border-lining on "wrong"
Either way, Sony should have just let this go. Likewise, Bridgestone should have kept the two (Lambert and Videogames) apart. This is a wash of stupidity and should be thrown out. |
Not really.
Sony's lawyers would have sent a cease and desist letter first. Bridgestone's lawyers would have read it, figured the only issue of consequence was Lambert's contract and decided the way to resolve the cease and desist letter would be to eliminate Lambert from the video. By removing Lambert Bridgestone should have satisfied all claims of harm. Theoretically.
The fact that Sony is pressing the lawsuit means they believe at this point that their brand has been damaged by the presence of Jerry Lambert in the commercial somewhere approximately near a Wii. The reason they're going to give is that because of the headlines that claimed Kevin Butler was in an ad for a the Wii, they'll suggest that the gaming community as a whole sees Jerry Lambert as Kevin Butler, therefore, Jerry Lambert as a nondescript white male is a Sony trademark.
Generic trademarks do not have as much protection as unique trademarks. So, if we assume Jerry Lambert's portrayal of Kevin Butler can be trademarked, then the question is, is Sony's nondescript white guy unique? If you look at the Holiday Inn ads especially, I don't think you can claim either performance by Jerry Lambert as anything but nondescript white guy in slacks, dress shirt, and tie.
How can you trademark that? You can't. A performance of a character cannot be trademarked. It can be copyrighted, but it can't be trademarked. The character is nondescript white guy, a character that Lambert has played twice before. Sony can't claim it's unique nor can Sony claim they were the first to do nondescript white guy using Jerry Lambert.
The only question is did Lambert violate Sony's contract, and it would appear that Bridgestone in good faith attempted to satisfy Sony's cease and desist letter or lawsuit by nullifying that claim and removing Lambert from the video. At this point, the only thing that has caused damage to Sony is that they've sued both Bridgestone and Lambert when, to be honest, I think everyone forgot about the Bridgestone AMEX/Wii Promo advertisement until Bridgestone edited out Jerry Lambert and more recently when news of the lawsuit broke.
Any damage to Sony's brand at this point was the direct result of Sony, not Bridgestone. My first thought when I saw the Bridgestone ad was "Why the Wii?" As in why not something like the Xbox 360 or the PS3? If I just plunked down a hefty chunk of change for four Bridgestone tires I'd have wanted something a bit more powerful than a Wii. Just saying.
Since the judge seems to be trying to get them to the bargaining table to talk it out rather than move the suit forward, my thoughts are Sony doesn't have a strong case and the judge thinks they should just cut a deal. If Sony had a valid claim with serious damages, I doubt he'd be pushing for them to settle.