Mediation: A Daredevil Stunt Legend and Hip Hop's Biggest Star Agree to Talks in a Major Trademark Dispute (Web)

On July 10, rapper Kanye West and motorcycle daredevil Evel Knievel notified a Florida federal judge that they would mediate in an attempt to settle a trademark infringement suit Knievel brought against West last December. See http://www.reuters.com/article/entertainmentNews/idUSN1231244320070712.

The suit, which also names Roc-A-Fella Records LLC, Chris Milk, and AOL LLC as co-defendants, takes issue with West’s 2006 “Touch the Sky” video, which portrays West as “Evel Kanyevel.”

The popular video has been ubiquitous on the Web and on video channels worldwide since its release. Knievel’s complaint seeks potentially huge damages and royalties from West, his recording label, the video’s director, and one of the leading distributors of the video, though a dollar figure isn’t specified.

In a 15-page complaint filed Dec. 12, 2006, in the U.S. District Court in Tampa, Fla, available at: http://www.courthousenews.com/Knievel.pdf, Knievel argues that the video constituted trademark infringement, trademark dilution, unfair competition, and unauthorized use of Knievel’s likeness.

Knievel cites the video’s mimicry of his failed attempt to jump the Snake River Canyon in 1974. The complaint alleges that many of the similarities were nearly indistinguishable and would result in confusion.

Knievel focuses much of his argument on the use of his trademark jumpsuit, and describes the popularity of the ABC Wide World of Sports broadcast of the Snake River Canyon event, which the video also resembles.

Furthermore, Knievel argues that the video contains “vulgar and offensive sexual images, language, and conduct” that is “directly counter to [his] long-established public persona” and “harms the reputation of the Evel Knievel® Trademark, and the Evel Knievel Costume.”

The complaint is referring to the relationship in the video between West, as “Evel Kanyevel,” and actress Pamela Anderson.

The complaint says that Knievel owns a federally registered trademark on his name under U.S. Registration Nos. 2450740 (May 15, 2001); 2481629 (Aug. 28, 2001); and 2864119 (July 20, 2004). Knievel contends that the defendants’ infringement was “undertaken willfully and deliberately and with the intent of causing confusion, mistake, or deception and to reap the benefit of Evel Knievel’s good will.”

In the complaint, Knievel discusses the resonance of his jumpsuited character’s image worldwide. The complaint--which requests damages in the form of the defendants’ profits, interest and royalties--notes that the jumpsuit is in Washington’s Smithsonian Institution, and he has been the subject of two films, one of which he starred as himself. The complaint says that more than $300 million worth of Evel Knievel toys, bicycles, watches and other products have been sold, “and are currently enjoying new sales.” 

In their answer, the defendants deny nearly all of the allegations (available at: http://www.onpointnews.com/docs/Knievel2.pdf). The defendants, however, admit that the video is an “unmistakable spoof, parody and/or satire of Knievel’s Snake River Canyon jump.” Furthermore, the defendants put forth the affirmative defense that the video constitutes protected free speech under the First Amendment since it is a “spoof, parody and/or satire.”

Defendant Milk directed the video, and America Online listed it for viewing when it was first released. In September 2005, defendant Roc-A-Fella received multiplatinum certification from the Recording Industry Association of America, for West’s “Late Registration,” the album containing the song depicted in the video--meaning it had sold at least two million copies.

At press time, the video could still be widely viewed on the Web, including at both Roc-A-Fella’s and Milk’s Web sites, for which Knievel was seeking an injunction. The video also is available on YouTube, and still is the first hit on an AOL video search for “Evel Knievel” under the “most viewed” category.

Knievel is seeking preliminary and permanent injunctive relief, other equitable relief, damages, costs, expert fees, and attorneys’ fees. He is also seeking all the “defendants’ profits, gains and advantages derived” from the video. The defendants are seeking dismissal of the suit with prejudice as well as attorneys’ fees and all costs incurred.

The mediation is set for Nov. 7, in Tampa., with both parties sharing the expenses.

–Carol Bahan, CPR Intern