In brief 3 min read
Owners of the popular Aussie mini-golf business Holey Moley Golf Club have taken NBA superstar Steph Curry's new US TV show to court for trade mark infringement, in a Happy Gilmore-esque battle for the ages.
Background
You may have visited the popular mini-golf and karaoke venue Holey Moley Golf Club, owned and operated by Fun Lab. Unfortunately, guacamole is not served at Holey Moley, nor does guacamole feature in this article.
Eureka Productions, with NBA superstar Steph Curry as co-producer, are the creators of a mini-golf TV show (yes, you read that correctly) titled Holey Moley.
In June this year, Fun Lab commenced proceedings against Eureka Productions in the Central District Court of California for trade mark infringement. While there are no Holey Moley Golf Club venues in the US, Fun Lab does own two registered trade marks there – for the word 'Holey Moley' and the corresponding logo (Fun Lab marks).
Despite legal proceedings being on foot, the show premiered in the US in late June, and has been well received, leading some to speculate whether the basketballer might be considering a pivot to golf.
Fun Lab's case
Eureka applied to register the word 'Holey Moley' as a trade mark in the US in September 2018, in relation to services in class 41, particularly in connection with 'entertainment services: namely, an ongoing television competition series featuring obstacle courses and miniature golf challenges'.
The Fun Lab marks, with a priority date in November 2017, pre-date Eureka's application and relate to similar services in class 41. In January 2019, the USPTO issued a non-final rejection of Eureka's application, on the basis that the proposed use of its mark was likely to cause consumer confusion, given the Fun Lab marks. It appears that Eureka ignored this objection and proceeded to premiere the show branded as Holey Moley in late June. Its application to register its mark was abandoned on 16 July. The show continued to air.
Fun Lab is understandably furious, claiming that Eureka's use of the confusing and identical mark in relation to the TV show will harm Fun Lab's reputation in its business, as consumers will likely be led to believe that the TV show is affiliated with, or otherwise authorised by, Fun Lab.
In its complaint, Fun Lab is seeking various types of relief, including an account of profits from Eureka, and an obligation for Eureka to publish corrective advertising. It is also seeking treble damages for the reckless indifference in Eureka's infringing conduct.
Fun Lab's case for trade mark infringement is a strong one; however, it might have a difficult time proving loss, given it does not yet have any venues in the US – at this stage, it appears to be relying on US traffic to its various online and social media locations. It does, though, claim that it plans to launch Holey Moley Golf Club venues in the US.
Not out of the rough yet
The proceedings are ongoing, with the defendant yet to file its answer to Fun Lab's allegations. We will keep an eye on this bogey, as it's not over yet.