Devo sues McDonalds

(image from Flickr user Marshall Astor)

Via Stuff New Zealand, (found off Brooklyn Vegan):

Post-punk pioneers Devo say they are suing McDonald’s in the US over a Happy Meal doll that sports the band’s signature red flower pot hat.

In April the fast food chain released a series of American Idol Happy Meal toys in the US based on a range of music genres, including Disco Dave, Country Clay, Rockin’ Riley and Soulful Selma.

Devo’s complaint relates to New Wave Nigel, a toy kitted out in an orange jumpsuit, pink shades, and Devo’s “energy dome” hat.

The band also allege that the toy plays a “Devo-esque song”.

(thanks to ILoveFastFoodToys for the pic)

My assessment below the cut.

It’s hard to judge before all the facts are in, but I’m rather ambivalent about this lawsuit. Naturally, my sightly-older-than-teenage rebellion loves the fact that one of my favorite bands is sticking it to the man so squarely, but I always worry when people take their copyright too far. Think for a moment if McDonalds was suing Devo for using a Ronald McDonald costume as an Mothersbaugh action figure accessory.

Devo stands on tricky ground here. One of the consequences of being so groundbreaking in so many areas is pioneering new intellectual property that may not warrant protection. Such is the case with the Power Dome hat. It isn’t a logo, per se, so it wouldn’t be trademark issue directly. It may be a trade dress or at least unfair competition case (as they do sell figures that have the power dome hat and one may argue confusion in the marketplace between the Devo-approved hats and the Devo-not-approved McDonalds toy).

It may speak to a larger issue of copyrighting fashion, which is often discussed as a possible new protectable expression, but as of now it isn’t. The closest anyone has come to protecting an expression of this nature would be Burberry and their famed plaid, who often pressure those who try and use similar patterns. A poke around the internets found a seat-cover maker who has run into Burberry a few times, and gives some excellent background on the various lawsuits they have filed to mark off their niche on that famous pattern. I think my favorite is the attempt to stop production of the official tartan pattern of the Thomson clan, which may predate Burberry by a century or so. Burberry does have a trademark in the pattern, however (Serial No. 77209954). Initial searches do find Devo as a name, and even the famous slanted-letter logo, but no evidence of claim on the Power Dome directly.

The last angle I can think of would be a character lawsuit, where by using a character so much like a Devo band member McDonald’s is falsely portraying Devo’s endorsement of the company. I must admit I know little about this particular field, other than the fact that Tom Waits had some success against Opal cars (a German GM subsidiary) and Frito-Lay. The former settled, the latter was found in favor of Waits, awarding several million dollars. The critical difference is Waits was arguing a sound-alike, something critical to his profession. Singing is what Tom Waits does, so something that confuses his singing would be a stronger trademark argument. The Devo Power Dome is ancillary; it’s an accessory. It’s a critical one, it’s a character defining one, and to that end they may have a cause there (I wonder how Michael Jackson would fare if an androgynous pasty singer wearing one white glove was a Happy Meal toy). But their trademark may be a tough one to make.

It’ll be an interesting case for sure. We’ll see how it plays out.