Back in June, when the HBO golden goose GAME OF THRONES was fresh on everybody’s minds, my esteemed colleague Chuck “the Chuch” Coulter let you good people know how HBO was gearing up to “roast” GAME OF STONERS trademark filed by Paper Street Capital LLC. Well, folks, the time has come. On September 14th, HBO filed its opposition, and it really goes without saying, GAME OF STONERS likely doesn’t stand a chance.
Paper Street Capital, LLC filed GAME OF STONERS in international class of goods 009 for “Computer game programmes downloadable via the Internet.” What I’m assuming they were going to do was make a marijuana-laced GAME OF THRONES parody game playable on the internet. If the game wasn’t to be a GoT parody, I’ll eat my words. While making the game may be okay in practice, attempting to trademark the game is a bad idea. If the game was a direct parody the likelihood of confusion argument used by HBO would be a no brainer. They are attempting to play off of GAME OF THRONES’ fame and recognition. Okay. BUT, if the game isn’t a parody, we have a much more interesting situation.
If GAME OF STONERS is totally independent and unrelated to GAME OF THRONES, then I think we have a real interesting case. On one hand you have a mark that is clearly similar in style and sounds to another mark. But, that mark may not intend to play off of GAME OF THRONES’ success and notoriety. Are video games titled “GAME OF [X]” forever prohibited just because good ole’ Georgey Martin created this behemoth of a franchise? If HBO wins here, it sure seems that way.
While there is no doubt that GAME OF STONERS sounds and looks like GAME OF THRONES, we will have to await Paper Street Capital’s response to see how they want to fight this. They could claim it is fair use of the mark under 15 USC § 1125(c)(3)(A)(ii) “identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.” Or, they could claim that they aren’t diluting the GAME OF THRONES mark as considerations for that argument include “whether the user of the mark or trade name intended to create an association with the famous mark; and any actual association between the mark or trade name and the famous mark.” For now, we wait for Paper Street to stop passing the dutchie and start filing responses.
Author, and mother of dragons, Martin Passante, is a 2L at Brooklyn Law School. Martin focuses his studies in intellectual property, entertainment, and copyright law especially in the world of YouTube.