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We work 11 hours a day, 7 days a week, for 2 weeks a year. Our computers went down at work today, so we had to do everything manually. It took me twenty minutes to shuffle the cards for Solitaire. I've quit my new job as a postman. They handed me my first letter to deliver, I looked at it and thought: "This isn't for me. My mate was complaining that the factory he works in is full of immigrant workers.
I said, "It makes you wish you'd paid attention at school, doesn't it? I got done for theft at my job interview the other day. Well, he did tell me to take a seat. As to the joke portion, e. Section 43 a of the Lanham Act, 15 U. See Boston Professional Hockey Ass'n v. In order to prove a violation of Section 43 a , a plaintiff must prove " 1 that [he] has trademark rights in the mark or name at issue Singleton, F.
The court must first determine, therefore, whether plaintiff has any trademark to protect. Plaintiff's asserted trademark lies in the use of the "you might be a redneck" device.
Rather, defendants argue that the phrase is purely functional i. Gay Toys, Inc. Ives Laboratories, Inc. Shen Manufacturing Company, Inc. Marks and features function as trademarks when they identify the source of particular goods or services. Purely functional features, however, are ornamental to the good or product itself, and therefore do not operate as a trademark. Supreme Assembly, Order of Rainbow for Girls v. Ray Jewelry Company, F.
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The question, then, is whether the phrase "you might be a redneck" is an identifying phrase, simply an integral part of the thing sold, or a combination of both. See International Order of Job's Daughters v. Pussycat Cinema, Ltd. First, the court finds that the phrase "you might be a redneck" does serve as a trademark when used in connection with plaintiff's humor. The evidence before the court indicates that, once plaintiff hit upon the right combination of words, that phrase became his "hook" or "catch phrase" by which he became known.
Unofficial Trans. Indeed, there was testimony from one of plaintiff's fans, Michael Steed, that plaintiff is in fact known in the public by that phrase. Further, the evidence before the court indicates that plaintiff's career began its rapid ascent only after he began using the phrase in conjunction with his jokes. That alone, however, does not establish a trademark; it merely lays the foundation for the association of the public of the phrase "you might be a redneck" with plaintiff.
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In this regard, therefore, it is highly significant that plaintiff has created a number of marketable goods based upon the "you might be a redneck" phrase. Plaintiff's first book was entitled "You Might be a Redneck. The name of his national comedy tour was the "You Might be a Redneck" tour. The tour was promoted in advertising media radio and print using this title.
The name of his platinum selling album is "You Might be a Redneck. The same title was used on the videocassette version of his Showtime special. Plaintiff's Exhibit 3. Plaintiff has a "page-a-day" calendar with different you might be a redneck jokes. Plaintiff's Exhibit Plaintiff has three books on the market filled with "you might be a redneck" jokes.
These facts, taken together, lead the court to the conclusion that a substantial segment of the viewing, listening, reading, and laughing public associate the phrase "you might be a redneck" with Jeff Foxworthy. Defendants argued at the hearing that the popularity of the above items is attributable to plaintiff, and not to the phrase "you might be a redneck," and that, even if the phrase plays a part, it only plays a functional part. The court disagrees in part. That he is known by his jokes as well does nothing to limit the fact that he is also known by the phrase. In this respect, the court find Carson v.
Here's Johnny Portable Toilets, Inc. In that case, the district court as well as the Sixth Circuit on appeal found that the phrase "Here's Johnny," the familiar introduction of the late night talk show host Johnny Carson, had become associated in the public's mind with Johnny Carson the entertainer. Carson's efforts to market the phrase were not as extensive as Mr. See F.
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If plaintiff had not used the phrase as identifying indicia on so many of his products, or if the phrase had been varied, the court might agree with defendants on this issue. But plaintiff has not, and the court does not. The court does agree, however, that the phrase is "functional" to a certain extent. The joke "You might be a redneck if Notwithstanding this facial functionality, however, the court finds the functionality defense insufficient to foreclose protection of plaintiff's phrase. First, it is questionable whether the "functionality" of the phrase fits into the legal description of functionality.
In Warner Bros. The telling of a redneck joke does not require an introductory or conclusory phrase.
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Indeed, there are other southern comedians who have their own style of redneck humor and who tell redneck jokes in a different form. Using an introductory phrase simply accommodates the style of plaintiff's humor. More important, even if the "you might be a redneck" phrase does fall within the functionality category, this does not foreclose all protection for the phrase.
In this respect, Dallas Cowboys Cheerleaders, supra, is instructive. In that case, the Second Circuit held that the uniforms worn by the famous cheerleading troupe were entitled to trademark protection, notwithstanding the fact that the uniforms served an obviously functional purpose.
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The court stated:. Similarly, in the instant case, plaintiff does not claim a trademark in all redneck humor. Rather, plaintiff claims a trademark in the phrase that distinguishes his particular brand of redneck humor from the other comedians performing similar material.
Therefore, as in Dallas Cowboys Cheerleaders, the mere fact that the phrase "functions" to deliver a joke does not deprive the phrase of protection where the phrase also "functions" to distinguish plaintiff's brand of humor. For the foregoing reasons, the court finds that plaintiff's phrase "you might be a redneck" is entitled to protection from confusingly similar phrases used in similar contexts. The Eleventh Circuit and its predecessor, the former Fifth Circuit has long held that the sine qua non of Section 43 a actions is a showing that consumers are likely to be confused "with respect to such things as the product's source, its endorsement by plaintiff, or its connection with the plaintiff.
Diversified Packaging Corp. See also id. The question, therefore, is whether defendants' "When You Ain't Nothin' But a Redneck" phrase is likely to confuse the public as to whether plaintiff is the source of the t-shirt. In determining likelihood of confusion, the Eleventh Circuit has held that a court must consider the following factors:. Although the court has already found that plaintiff's phrase "you might be a redneck," when used in connection with plaintiff's humor, whether in book, video, novelty item, or other form, has attained secondary meaning, the court finds that plaintiff need not make such a showing because plaintiff's phrase is "suggestive" within the legal meaning of that term.
As previously noted, a "suggestive" mark "subtly connotes something about the service or product.
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