Tokyo Broadcasting System survives first elimination round in lawsuit against ABC's 'Wipeout'

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Tokyo Broadcasting System survives first elimination round in lawsuit against ABC's 'Wipeout'

Thu Aug 13, 2009 @ 03:36PM PST

By Eriq Gardner

Large_japan Japanese-based Tokyo Broadcasting System has successfully navigated the wacky obstacle course of intellectual property law and convinced a California district court to hear claims that ABC and Endemol USA behaved improperly in marketing its hit show, "Wipeout."

Last year, TBS sued "Wipeout" producers, saying the game show that has challengers run through a silly and humiliating obstacle course infringed elements of its own shows, including "Takeshi's Castle" and "Most Extreme Elimination Challenge." But copyright was only one of the claims. TBS also pushed the boundary of law by claiming ABC committed trademark infringement and unfair competition by doing things like purchasing Google Adwords sponsorship of those Japanese shows, tied "Wipeout" to another ABC show entitled "I Survived a Japanese Game Show," and manipulated the audience into thinking that "Wipeout" was a duly-licensed Japanese game show.

In its motion to dismiss, ABC ignored the copyright allegations to focus on those latter claims. Yesterday, the California District Court denied ABC's motion and allowed TBS to pursue its allegations at trial. Here's the decision.

The way that Google has allowed advertisers to purchase trademarked keywords has been controversial in past years. In this instance, TBS (repped by Hollywood litigator Larry Stein) didn't go after Google, but ABC for buying advertisements anytime a Google user searched for "Takeshi's Castle" and TBS' other shows. Searchers were presented with a sponsored link for "Wipeout on ABC," and the Alphabet argued that it was legitimate since it had clearly identified itself and wouldn't lead consumers to any confusion. The California court doesn't accept that argument, saying TBS could lose potential viewers by defendants' "free-riding."

TBS also takes issue with the way that ABC has tied all its shows together with the implication that "Wipeout" is being licensed from Japan. The California court seems to have doubts about this false advertising legal theory, but it rules it "survives dismissal, albeit barely."

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to [email protected]

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