Wwe v. Big Dog Holdings, Inc., 280 F.Supp.2d 413 (W.D. Pa., 2003)
280 F.Supp.2d 413WORLD WRESTLING FEDERATION ENTERTAINMENT, INC., a Delaware corporation, Plaintiff,v.BIG DOG HOLDINGS, INC., a Delaware corporation, Defendant.No. 01-CV-394.United States District Court, W.D. Pennsylvania.March 10, 2003.
I. INTRODUCTIONThe Worldwide Wrestling FederationEntertainment, Inc. ("WWE") filed a seventeen (17)count Amended Complaint asserting claims againstBig Dog Holdings, Inc. ("Big Dog") for copyrightinfringement (Counts I through VI), trademark infringement under Section 32 of the Lanham Act, 15U.S.C. § 1114, (Count VII), trademark infringementand false designation of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), (Count VIII),trade dress infringement under Section 43(a) of theLanham Act, 15 U.S.C. § 1125(a), (Count IX),misappropriation and unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a), (Count X), trademark dilution under Section43(c) of the Lanham Act, 15 U.S.C. § 1125(c),(Count XI), violation of the Pennsylvania anti-dilution statute, 54 PA. CONS. STAT. ANN. § 1124(Count XII), violation of Pennsylvania fair trade practices statutes, 73 PA. CONS. STAT. ANN. §§201-2 and 201-3 (Count XIII), unfair competitionunder the common law of Pennsylvania (Count XIV),and violation of the right of publicity under thecommon law of Pennsylvania (Counts XV, XVI, andXVII).Following the close of discovery, Big Dog fileda Motion for Summary Judgment pursuant to Rule 56of the Federal Rules of Civil Procedure. WWE hasresponded and the motion is now before the Court.II. STATEMENT OF THE CASEA. The ContestantsWWE is an integrated media and entertainmentcompany engaged in the development, promotion andmarketing of television programming, pay-per-view programming and live arena events, and the licensingand sale of branded consumer products. (Am.Cmplnt. ¶¶ 11 and 16). WWE has been involved inthe sports entertainment business for over twenty (20)years and has developed story lines based around itswrestling characters. (Am. Cmplnt. ¶¶ 17 and 18).Currently, WWE produces five television programseach week: (i) "Raw" and "War Zone" shownconsecutively on Monday nights and known as "Rawis War"; (ii) "WWF Smackdown!" on Thursdaynights; (iii) "Live Wire" on Saturday mornings; (iv)"Superstars" on Sunday mornings; and (v) "Heat" onSunday nights. (Am. Cmplnt. ¶ 17).Through its programming, described by WWEas "... action-packed episodic drama ... akin to anongoing, ever-developing soap opera," WWE hasdeveloped popular wrestling characters appearingunder unique names and portrayed with unique persona, history relationships, music and visualappearance, and behavior. (Am. Cmplnt. ¶¶ 17 and19). A principal component of WWE's business is themerchandising and licensing of branded consumer products depicting these characters' names,likenesses, signature phrases, as well as depictingWWE's programming. (See Appendix to WWE'sOpposition to Big Dog's Motion for SummaryJudgment Exhibit R) (hereinafter "WWE Exhibit ___"). These branded consumer products aremarketed and sold through two separate operations:(1) WWE direct merchandising, which refers toWWE's own design, production and sale of product principally through WWE's internet website,semiannual catalogs and sales at live events; and (2)licensing, which refers to WWE's licensing of itsintellectual property by category (i.e., t-shirts, tradingcards, posters, action figures, etc.) to third-partycompanies that pay royalties to WWE on productsales.1 (WWE Exhibit T, p. 6 lines 7-22). WWE, inturn, pays royalties to the individual portraying thecharacter based on revenues from the sales of products depicting the individual's WWE character.(WWE Exhibit Q, ¶ 6).Through predecessor companies, Big Dog has been in business since 1983, and its first full year of operations under current ownership was in 1993. (BigDog Exhibit G, ¶ 1). Big Dog develops, markets, andretails a branded lifestyle collection of unique, highquality, popular priced consumer products, includingactive wear, casual sportswear, accessories and gifts.(Big Dog Facts ¶ 18). Big Dog has registeredtrademarks in both "Big Dogs" and its famous dogdesign logo. (Big Dog Facts ¶ 35). Its merchandise issold solely through its own Big Dog stores, its
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