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  • Writer's pictureDavid Baker

Duke Caboom lawsuit fizzles with Ninth Circuit ruling

Ninth Circuit Says Disney’s Duke Caboom Does Not Infringe Evel Knievel

“Duke Caboom is a fictional character, unlike Knievel, said the court. Second, Caboom has a different name, appearance and back story than Knievel, and Knievel is never directly mentioned in Toy Story 4.”

The U.S. Court of Appeals for the Ninth Circuit has affirmed an earlier ruling by Judge James C. Mahan of the District of Nevada dismissing a trademark infringement lawsuit filed by K and K Promotions, which owns the IP rights to famed American daredevil Evel Knievel. The Ninth Circuit agreed with Judge Mahan that the character of Duke Caboom from Walt Disney Studios and Pixar’s Toy Story 4 was not a literal depiction of Knievel, but rather a transformative use.

As we have previously reported, K&K Promotions is owned by Knievel’s son Kelly Knievel, and it had filed the underlying lawsuit in September 2020 accusing Disney and Pixar of intentionally modeling the “Toy Story 4″ character on Knievel. Kelly’s father, now deceased, was known for a series of motorcycle stunts, including jumps in 1967 over the Caesars Palace fountain in Las Vegas — including a spectacular near-fatal crash — and in 1975 over a row of buses at Wembley Stadium in London.

The animated Duke Caboom character, voiced by Keanu Reeves, did bear similarities to Evil Knievel. For example, he clearly road a motorcycle, albeit a plastic toy motorcycle, he wore a uniform and related gear reminiscent of some of the outrageous outfits Knievel favored in his own stunts, and he displayed a bravado commensurate with the “death defying” stunts he performed. K and K Promotions, had characterized the Caboom character as “a direct knock-off of the legend and historical significance” of Knievel’s father, the famous stunt motorcyclist who died in 2007 at 69 in Florida of lung disease.

U.S. District Judge James Mahan had dismissed the case against Walt Disney Studios Motion Pictures on Sept. 23, writing that while the Caboom character was “reminiscent” of Knievel, “Disney’s use of Evel Knievel’s likeness contains significant transformative elements” and is not a literal depiction. The judge also found that the film character has a different name and clothing, is Canadian rather than American, and wears a mustache and different hair color and style than Knievel.

“Duke Caboom is not a carbon copy of Evel Knievel minus a few details,” Mahan wrote. “The Duke Caboom action figure is a representation of Disney’s expression in the film and not an attempt to imitate Evel Knievel.”

Why It Matters. As the Ninth Circuit ruling explained, application of trademark infringement test set forth in Rogers v. Grimaldi, 875 F.2d 994, 1000 (2d Cir. 1989) leads to a conclusion that K&K failed to show Duke Caboom is “explicitly misleading” as to its source. In order to determine whether the use of a mark is explicitly misleading the court considers: “(1) the degree to which the junior user uses the mark in the same way as the senior user and (2) the extent to which the junior user has added his or her own expressive content to the work beyond the mark itself.”

First, Duke Caboom is a fictional character, unlike Knievel, said the court. Second, Caboom has a different name, appearance and back story than Knievel, and Knievel is never directly mentioned in Toy Story 4. K&K had argued that Lanham Act claims cannot be decided on a motion to dismiss, but the Ninth Circuit said this is contrary to precedent, citing Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1239 (9th Cir. 2013).

Further, as to K&K’s claim that Disney violated its right to publicity under Nevada law, the court said that the claim is barred by the transformative use defense. K&K had also asked for leave to amend its complaint based on internal Disney statements obtained during Discovery, but the district court denied the request.

In upholding Judge Mahan’s decision, the Court of Appeals held that the studios were immune to trademark claims by K and K, as Caboom was “clearly” relevant to the film, and that “unlike Evel Knievel, Duke Caboom is a fictional character in an animated film about toys that come to life.” The court also noted that Caboom was given a different backstory, name, and appearance, making it hard to claim that it was Knievel.

And, “even if the character may be generically reminiscent of Knievel to some extent, the district court properly concluded that it is not a literal depiction, and instead shares general features basic to stuntmen.”

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