When something becomes popular of course there are going to be imitations but Robert Kirkman must be at his wit’s end about now. Kirkman is involved with an all out legal battle with the creators of a Walking Dead restaurant, well now he can add some THE WALKING RED wine to his menu of legal battles.
Since November 2015, well after the creation of the comic book and television series, a Kentucky-based winery called Bruners Farm and Winery, LLC began distributing a red wine bearing THE WALKING RED trademark. With the zombie inspired label, there can be no doubt that the hit television show inspired the wine. In December 2015, Bruners filed a trademark registration application for the THE WALKING RED mark in a class that covers “wine”. Such a refreshingly simple trademark classification.Last week, Robert Kirkman, the creator of *The Walking Dead*, filed his opposition to the registration of the trademark. Since the creation of the comic book in 2003, Kirman has used THE WALKING DEAD mark and has several registered trademarks for the title but none in a class that covers wine but Kirkman did license the use of the mark to a beer company. Kirkman argues that THE WALKING RED mark is nearly identical to the THE WALKING DEAD mark in sight, sound and commercial impression and the marks vary by only a single phonetic sound. Further, Kirkman claims the winery has chosen to reinforce the association with his THE WALKING DEAD mark by prominently displaying on its label images and text directly referencing characters appearing in Kirkman’s television series and comics.
So what about fair use and parody some FUPA loving people may argue. This is clearly a parody of the WALKING DEAD trademark and should be allowed, right? Well yes and no. Yes, this is a totally acceptable form of parody but parody does not justify the registration of a trademark. Parody and fair use is only a defense to allegations of infringement. Therefore, in order to be granted the trademark, Bruners must show that confusion between the marks is not likely. The marks are very similar especially with Bruners throwing a zombie in their trademark use specimen. I tend to think the parties will work out some sort of settlement here or there is a good chance THE WALKING RED mark might be deader than a zombie.