If you are a fan of the performing arts, it would be hard not to possess at least a tangential knowledge of Tyler Perry. He’s written or had a hand in numerous plays, movies, books, and television series, almost all with his name prominently featured in the title to draw fans in. Unfortunately, his endeavor into realm of trademarks in media has landed him into a bit of legal drama that he might rather his name not be attached to.
Perry was awarded the trademark to the phrase “What Would Jesus Do” by the United States Patent and Trademark Office (USPTO) in his battle with Kimberly Kearney, a former contestant on the VH1 reality series I Want to Work for Diddy. When Perry originally filed for the trademark in May 2008, Kearney had already made a filing on the phrase five months earlier with the intent to create a reality television show. When Kearney’s filing was published for opposition in 2010, Perry and his aptly-named Tyler Perry Studios challenged, claiming no use on the part of Kearney. Kearney and her lawyers argued that she had shared the program and title with Tyler Perry Studios and had solicited funding in the early stages of production and that Perry and his studio subsequently filed their trademark claim after learning of the show.
Perry and his attorneys were able to force Kearney’s hand by requesting an admission of certain facts, namely that she admit to not producing a show related to the trademark (trademark abandonment) nor selling or taking meetings related to selling the show to producers, and that the webpage whatwouldjesusdo.tv and the related email address were non-functional. Because Kearney did not provide a timely answer to the request of admission, the facts were, for the purposes of the proceedings, considered admitted and “conclusively established.” Despite the fact that Kearney denied any such claim in her initial response to the petition, this “admission” supersedes that denial, as the onus fell to the respondent (Kearney) to answer the petitioner’s prima facie case. While Kearney and her team may have been able to establish a solid defense based upon evidence of use, their inaction seemingly granted Tyler Perry Studios a victory by default.
With the win, the burden now falls to the studio to use the mark in commerce, lest he find himself on the other side of a legal challenge. Given Perry’s prolificacy, it certainly wouldn’t be surprising to see Tyler Perry’s What Would Jesus Do in theaters or on a television screen in the near future.
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