Elvis Presley Enterprises, Inc. v. Capece

141 F.3d 188 (1998)

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Elvis Presley Enterprises, Inc. v. Capece

United States Court of Appeals for the Fifth Circuit
141 F.3d 188 (1998)

SH

Facts

Elvis Presley Enterprises, Inc. (EPE) (plaintiff) was the assignee and registrant of all trademarks belonging to the Elvis Presley estate. EPE licensed these marks for use on various products and operated Graceland as a tourist attraction with adjacent retail stores and restaurants. However, none of these marks were registered for use in the restaurant and tavern business. Between 1991 and 1992, Capece (defendant) opened a bar called “The Velvet Elvis” and obtained a federal service-mark registration for restaurant and tavern services. Capece’s bar’s décor was eclectic and included velvet paintings of celebrities, including ones of Elvis, and various other Elvis references. Images and references to Elvis appeared in advertising for the bar, and some emphasized the “Elvis” portion of the name in bold with an almost unnoticeable “Velvet” appearing alongside in smaller script. Other advertisements made direct references to Elvis with phrases such as “The King Lives” and “Elvis has not left the building.” In 1995, EPE sued Capece, claiming that the inclusion of its “Elvis” trademark in the service mark “The Velvet Elvis” coupled with Capece’s use of the image and likeness of Elvis in advertising, promoting, and rendering bar services created confusion as to whether EPE licensed, sponsored, endorsed, or was otherwise affiliated with “The Velvet Elvis,” constituting unfair competition and trademark infringement under the common law and Lanham Act. The district court ruled in favor of EPE on its claims of trademark infringement and unfair competition relating to Capece’s advertising practices, but not those claims relating to their use of “The Velvet Elvis” service mark. EPE appealed, arguing that the district erred in isolating its consideration of Capece’s advertising from its consideration of whether “The Velvet Elvis” service mark infringed EPE’s marks.

Rule of Law

Issue

Holding and Reasoning (King, J.)

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