A judge has ordered the billionaire media entreprenuer Alki David to stop calling his new online TV service BarryDriller.com, ruling that the name is misleadingly similar to that of another much bigger media mogul, Barry Diller.
In a 20-page order issued on Wednesday, U.S. District Judge Audrey Collins in Los Angeles enjoined David and several companies affiliated with him from using the terms “BarryDriller.com” and “Barry Driller” (that’s Driller, with an “r”). David launched an online television service by that name in August. According to Diller, who immediately sued, BarryDriller.com is an obvious attempt to capitalize on the early success of Diller’s new online TV start-up, Aereo Inc.
Diller, of course, is the self-made billionaire who ran both Paramount Pictures and Fox before founding the media empire IAC/InterActive Corp. In February Diller invested $20.5 million in Aereo, which streams live and recorded TV shows over the internet to subscribers for $12 a month without paying retransmission fees to the networks that make the shows. In a so-far successful attempt to avoid copyright liability, Aereo has filled a warehouse in Brooklyn with thousands of dime-sized TV antennas that make unique copies of each TV program for individual subscribers, as opposed to a central copy. The arrangement lets Aereo avail itself of a seminal 2008 copyright decision by the U.S. Court of Appeals for the Second Circuit in Cartoon Network v. CSC Holdings. In that case, the Second Circuit was confronted with Cablevision DVR technology that let subscribers record TV programs and then view them later. It ruled that Cablevision’s retransmission of those TV shows is not a “public performance” for purposes of the Copyright Act, because the DVR technology produced a unique copy for each customer.
As we’ve reported, ABC, NBC, FOX and other networks sued Aereo for copyright infringement in March. In July, U.S. District Judge Allison Nathan in Manhattan denied their request for a preliminary injunction, suggesting that she thinks that Aereo is shielded by the Cablevision precedent. The networks, which are represented by Jenner & Block, have appealed that decision to the Second Circuit. We named Aereo’s lawyers at Goodwin Procter and Winston & Strawn Litigators of the Week for their success in the case so far.
Just a few days after Nathan’s ruling, David launched his own service to compete with Aereo: BarryDriller.com. David, who was just profiled by The Hollywood Reporter, is a 44-year-old Greek (Alki is short for “Alkiviades”) whose family controls the Coca-Cola Hellenic Bottling Company SA. When’s he’s not offering rappers Chris Brown and Drake millions of dollars to fight over pop star Rihanna, he’s investing in digital media ventures. He launched a service with some similarities to Aereo back in 2010 called FilmOn. The networks sued over that venture too, and David agreed to abandon the site as part of a settlement announced in July. (We last wrote about that feud here.)
It’s not entirely clear what David is after with BarryDriller.com. In an interview with The Wall Street Journal, he said he’s just paying “homage to a great guy.” Diller clearly didn’t see it that way. He hired Manatt Phelps & Phillips to bring a complaint for violations of the Lanham Act and California tort law, claiming that David is seeking to unfairly capitalize on Aereo’s high-profile court win.
David hired Ryan Baker of the L.A. firm Baker Marquart to oppose Diller’s injunction bid. Baker argued that a glance at the “Barry Driller” mascot dispelled any risk of confusion and established the name as a legally-protected parody. “The depiction of Barry Driller looks nothing like Barry Diller. . .it is a cartoonish depiction of a shirtless, good-looking, muscular, young, blue-collar worker holding a drill with a lascivious look on his face and cartoon tool-with an over-sized FilmOn logo near the midsection,” they wrote. “The cartoon lampoons and achieves a humorous effect precisely by emphasizing and exaggerating noted contrasts with the real-life Barry Diller.”
Collins rejected that argument on Wednesday, ruling that the evidence “strongly suggests that defendants intended to capitalize on Plaintiff’s name and involvement with defendant’s competitor Aereo.” Diller’s lawyers at Manatt, led by partner Robert Platt, now have ten days to draft their proposed preliminary injunction.
