Philip Morris and his wife Amy Morris Smith are the principal stockholders of the corporation and are alleged in the complaint to have participated in the infringing conduct. Morris Costumes is a North Carolina corporation, operating a retail costume-rental establishment in Charlotte, North Carolina. On May 2, 1997, Lyons commenced this action against Morris Costumes, Inc., Philip Morris, and Amy Morris Smith, alleging copy-right and trademark infringement, as well as a state law violation. To protect its intellectual property, Lyons has registered approximately 25 trademarks and obtained hundreds of copyrights with respect to the name “Barney” and the character's depiction.
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Lyons does, however, license the Barney image on toys, books, clothing, and the like. Masters, Protecting Barney's Image from Bogus Beasts, Wash. Lyons not only refuses to license Barney costumes, but also has waged a legal campaign against retailers that have distributed allegedly infringing costumes. Moreover, Barney's live voice is provided by only one person.
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Accordingly, every person who wears the costume-there are five-is trained by a single choreographer how to be Barney.
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3, 1998, at C2 (describing the satirical treatment of Barney look-alikes by such notables as Charles Barkley and the Famous Chicken). Zack Van Eyck, Take a Deep Breath: Barney Has Hit the Big Screen, Deseret News Today, Apr. It claims that it would be unable to prevent would-be Barneys from behaving in a decidedly un-Barney-like manner and tarnishing his wholesome reputation. The live appearance of the Barney character, who is played by adults in costume, is completely controlled by Lyons, and Lyons does not license Barney costumes because of its inability to police the behavior of those who might appear in the costume. Adults rarely watch the program except with their children. The “Barney and Friends” show enjoys the number one Nielsen rating for shows directed at young children. Now, the “Barney and Friends” show is viewed weekly by 14 million children, and over 50 million copies of Barney-related videos have been sold. Instead, people started lining up before the mall opened, and by the time Barney arrived, 35,000 had formed a line that extended for one and a half miles. At an early appearance of Barney at a mall in Dallas, Texas, promoters expected a few hundred people to appear to see him. On April 5, 1992, Barney made his debut on the Public Broadcasting System, and, Lyons claims, the result was “absolutely unprecedented.” Barney became hugely popular with children almost instantly. Lyons' predecessor developed Barney as a plush stuffed animal in 1988, and in connection with that process, it prepared three video-tapes featuring the character. Lyons Partnership, L.P., (“Lyons”), a Texas limited partnership, owns all of the intellectual property rights to the character “Barney,” the well-stuffed Tyrannosaurus Rex with a green chest and stomach, friendly mien, green spots on its back, and yellow “toeballs.” Barney is readily recognizable to young children, who repeatedly parrot his song, “I Love You,” 1 often testing the patience of nearby adults. After considering the district court's comprehensive rulings, we affirm in part, reverse in part, vacate in part, and remand. The district court recognized the plaintiff's intellectual property rights in the Barney character but denied their enforcement against a costume rental company because (1) the first act of infringement occurred outside of the statute of limitations period (2) the claims were in any event barred by laches and (3) confusion as to one of the costumes existed only among young children and not among the adults who rented the costume. The owner of “Barney,” the famous purple dinosaur who speaks in a distinctive baritone, seeks, through this action for injunctive relief and damages, to end the marketing of three look-alike costumes that children allegedly believe are in fact Barney.
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James Grode, Moore & Van Allen, P.L.L.C., Charlotte, NC, for Appellees. ON BRIEF: Hubert Humphrey, David Sar, Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Greensboro, NC, for Appellant. Jay Scot Bilas, Moore & Van Allen, P.L.L.C., Charlotte, NC, for Appellees. Decided: March 16, 2001īefore NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.ĪRGUED: Mack Sperling, Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Greensboro, NC, for Appellant. MORRIS COSTUMES, INCORPORATED Philip Morris Amy Morris Smith, Defendants-Appellees.
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LYONS PARTNERSHIP, L.P., a Texas Limited Partnership, Plaintiff-Appellant, v. United States Court of Appeals,Fourth Circuit.