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Ninth Circuit Affirms Dismissal of Lanham Act Claims under Dastar

On June 27, the Ninth Circuit handed down an unpublished trademark decision in Harbour v. Farquhar, which reviewed the Central District of California’s dismissal of plaintiff’s false designation of origin claims under Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). In short, the Ninth Circuit affirmed.

Its decision is short and sweet: “Gerald Whane Harbour and Gee-Gee 100 Productions, Inc. appeal the district court’s dismissal of their claim that Kurt Farquhar and Farquhar Productions, Inc. violated the Lanham Act, 15 U.S.C. § 1125(a), by licensing Gee-Gee’s digitalized musical compositions to various television and film producers and falsely representing that Farquhar had provided the musical services, composed the music, and produced the digital goods. …

“Section 43(a) of the Lanham Act creates a federal cause of action against a person who used in commerce either ‘a false designation of origin, or any false description or representation’ in connection with ‘any goods or services.’ In Dastar, the Supreme Court grappled with the correct interpretation of this language, specifically with what the Lanham Act means by ‘origin’ of ‘goods.’ The Court ultimately held that the phrase refers to ‘the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.’

“Under Dastar, the ‘goods’ at issue here were the completed television programs, or the products offered for sale to the public. Gee-Gee’s musical compositions were ‘idea[s], concept[s], or communication[s] embodied within those goods.’ Therefore, Dastar controls, and Gee-Gee fails to state a claim under the Lanham Act.”

The case cite is Harbour v. Farquhar, 2007 WL 1851927, No. 05-55693 (9th Cir.).

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Reader Comments (3)

I am a victim of the Farquhar system. Those that are on the inside know that Kurt Farquhar didn't write a thing yet he is collecting all royalties. But the law isn't truth...the truth is the truth! Gee Gee is absolutely correct and Kurt Farquhar is absolutely WRONG!
December 20, 2007 | Unregistered CommenterMarcus Coleman
oh and BTW...These compositions were not "‘idea[s], concept[s], or communication[s] embodied within those goods.’" No....the way it works is like this; that cue has to be complete and written for that particular scene or work; a work completely conceptualized by the producers and music supervisor in a meeting called a spotting session...therefore how can it be an idea of a concept?...No we have to realize what they have just described to us in that meeting. Also, It has to fit the length, size, mood and dialog of the motion picture. No, Kurt would give us the tapes or DVD, then after we have written the music cues, go and submit them to the music supervisor (which often times meant that he was the music supervisor) and then they would place the music into the show(which ever show we were working on). In this way how can you say something is an idea or concept or even a communication which was written specifically for that purpose....It was not! And further, it does not make sense for someone to write something for the purpose of embodying that particular work into another piece of work and not receive compensation for it!
December 20, 2007 | Unregistered CommenterMarcus Coleman
When an OLD justice system is not educated or informed about an industry or new wave technology they render these types of decisions. Their ignorance is costing us all and people of evil intentions know this to be true. This OLD system has no place in the 21st century!
February 5, 2010 | Unregistered CommenterJane Doe

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