Update: Oprah ‘OWN Your Power’ Phrase NOT a Mistake, Trademark Infringement Case Filed by Simone Kelly-Brown Dismissed

In Entertainment Law, Publishing, Trial by FASHIONENTLAW™

It is no news that Oprah has now said launching OWN TV Network, when she did, was a mistake. Oprah is a very smart woman if you ask me. What a great way to get the pressure off her back so people can let her be, so she can focus on truly building the kind of network she wants. I salute you Oprah and I trust from one woman who also “Owns her Power” i.e. “Occupies Her Greatness” as I say, our paths will cross, at some point.

Speaking of owning your power, folks I discussed the ‘OWN Your Power’ trademark infringement case filed by Simone Kelly-Brown last year. In my analysis and legal commentary, I explained the heart of the case was that of a “likelihood of confusion” that is at the crux of most trademark infringement cases. I concluded I did not see Ms. Kelly-Brown prevailing in this case. Please revisit the article here.

Oprah, consistent with my predictions, scored a major victory. The court indeed reasoned along the lines I did. In pertinent part, here is what THR,Esq. had to say about the court’s reasoning and conclusion:

“Looking at the cover, the judge saw the magazine’s trademark “O” as identification that the phrase was meant as a headline, describing the contents of the magazine.

Kelly-Brown believed that this actually worked against Winfrey insofar as the defendant was trying to combine the trademarked “O” with the plaintiff’s own mark to create a “single source identifier.”

The judge rejects this analysis because of Winfrey’s well-known trademark and reputation, the clear display of the magazine copy, and the innocent use of the phrase — a coverline describing what’s inside the magazine.

The plaintiff questioned whether “Own Your Power” really described the contents of the 2010 issue at issue, but the judge notes that such sayings as “Tap Into Your Strength” and “Let Your Best Self Shine” denote the type of encouragement that readers would be getting by picking up a copy.

The judge also says that Winfrey didn’t use the mark in bad faith, that there wasn’t any trademark use so there didn’t need to be any analysis over likelihood of confusion, and that Winfrey doesn’t have liability for others infringing the trademark. On that latter point, the judge ruled that if there wasn’t direct infringement, there couldn’t be secondary infringement. As a result, the judge didn’t have to get into what would have been an interesting discussion over whether Winfrey’s power is so vast that she could get others to repeat what she said. . .” –THR, Esq.