Ate My Heart Inc. v Mind Candy Ltd

JurisdictionEngland & Wales
JudgeMR. JUSTICE VOS
Judgment Date10 October 2011
Neutral Citation[2011] EWHC 2741 (Ch)
Docket NumberClaim No. HC11C03222
CourtChancery Division
Date10 October 2011

[2011] EWHC 2741 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

INTELLECTUAL PROPERTY

The Rolls Building

7 Rolls Buildings

London EC4A 1NL

Before:

Mr. Justice Vos

Claim No. HC11C03222

Between:
Ate My Heart Inc
Claimant
and
(1) Mind Candy Limited
(2) Moshi Music Limited
Defendants

MR. I. PURVIS QC and MR. T. ALKIN (instructed by Mishcon de Reya) appeared on behalf of the Claimant.

MR. M. VANHEGAN QC and MR. H. CUDDIGAN (instructed by Clintons) appeared on behalf of the Defendants.

MR. JUSTICE VOS

INTRODUCTION

1

This is an application by Ate My Heart Inc. ("the claimant" or "AMH") for an interim injunction to restrain an alleged infringement of trade mark. The infringement threatened is the release of a pop song by an animated Moshi Monsters character called Lady Goo Goo. This character is alleged to infringe the trade marks registered by the claimant, a company wholly owned and controlled by Lady Gaga, the famous pop star, whose real name is Ms. Stefani Germanotta. The trade mark portfolio relied upon by the claimant is as follows. First, a Community Trade Mark number 9568247, being the words "Lady Gaga", registered as from 3rd March 2010 (according to the defendants), or 22nd November 2010 (as per the claimants), for "sound and video recordings, audio-visual recordings featuring music and musical-based entertainment" in class 9, and "entertainment… services" in class 41. Secondly, the Community Trade Mark number 9791013, being the words "Lady Gaga" registered with effect from 7 th March 2011. (according to the defendants) or 11 th May 2011. (according to the claimants) for, amongst other things, "streaming of audio and video material on the internet" in class 38. Nothing, I think, turns on the precise date of registration of these two Community trade marks.

2

The claimant is a corporate vehicle used by Lady Gaga and, as I have said, owned and controlled by her to own, amongst other things, trade mark registrations for her mark Lady Gaga, and to exploit her rights in music, media, fashion and consumer products. On the evidence, the claimant has already generated several tens of millions of dollars in revenues from Lady Gaga's trademark portfolio. The first defendant, Mind Candy Ltd. ("the first defendant" or "MCL") was incorporated on 5 th May 2004 and now operates an online children's computer game called Moshi Monsters, which claims to have almost 50 million users as at 20 th September 2011. MCL has some 95 employees, as I understand it, engaged mostly upon the business of the Moshi Monsters Game. The second defendant, Moshi Music Ltd., is a subsidiary of the first defendant and was incorporated on 18 th August 2011 to exploit musical sound recordings and songs associated with the Moshi Monsters Game and its characters.

3

In the Moshi Monsters Game one of the characters is called Lady Goo Goo. That character has existed since the end of 2009, allegedly unknown until recently to the claimant. The claimant says that it only became aware of the character when the defendants applied to register a trade mark in the name of Lady Goo Goo on 5 th April 2011. Lady Goo Goo is a cartoon character featuring a baby and wearing a nappy. The head, however, has large sunglasses with crystals on the right side, blond hair in some images worn in a style that is at least reminiscent of Lady Gaga on some of her album or other video poses, and a hair bow in some images, also reminiscent of Lady Gaga. The Moshi Monsters Game is a social networking online game aimed at children between the ages of 6 and 12 years' old. The player registers and chooses a pet monster which is then guided around the Game. The player nurtures his or her monster, which develops a character as it is played, and the player solves puzzles and embarks upon missions and thereby earns money, which is called in the Game "rox", and which can be spent in a virtual shop on things to feed the monster and to amuse the monster and make it happy. Players also make friends with each other in what is described as a "wide variety of safe social networking features such as monster blogs".

4

The claimant's particular complaint in this case is that the defendants intend to release as a single a pop song called "The Moshi Dance" ("The Song"). The Song is sung by Lady Goo Goo and is alleged to bear a striking resemblance to a Lady Gaga hit called Bad Romance. The Song has in fact already been released on the well-known site YouTube and has been phenomenally successful in terms of hits. The question that I have to decide is whether the defendants should be required to remove the Song from its YouTube pages and whether they should be enjoined from releasing the Song as a single on iTunes and no doubt in other media.

5

I shall start by dealing in as little detail as is possible with the chronological background to the matters that I have already mentioned.

CHRONOLOGY

6

The Moshi Monsters Game was launched in April 2008. In January 2009 Lady Gaga had her first hit song, called Just Dance, in Europe. Since then Lady Gaga has released nine further international hit singles, including such well-known songs as Poker Face, Paparazzi and Bad Romance, and she has had three very successful albums called The Fame, Fame Monster and Born This Way. Also, since January 2009, Lady Gaga has sold, on the evidence, some 64 million singles, some 20 million albums, and has done two sell-out world tours. She has attracted a record 13 million followers on Twitter and, in communicating on Twitter, she uses the term "Little Monsters" to refer to her fans or followers.

7

In September 2009 the defendants introduced Lady Goo Goo into the Moshi Monsters Game. It is quite clear that Lady Gaga's success as a recording artist had come before Lady Goo Goo was introduced into the Moshi Monsters Game. At the same time, in September 2009, the defendants introduced a number of other parody characters into the Moshi Monsters Game. It is important to see Lady Goo Goo as one of these characters, and I just mention a few of them. The defendants introduced Banana Montana, a character who bears some similarity to the artist Hannah Montana. They introduced the character Broccoli Spears, who bears some similarity to the well-known pop artist, Britney Spears. They introduced Taylor Miffed as a character, bearing similarity to Taylor Swift. They introduced the Groanas Brothers, bearing similarly to the Jonas Brothers. In addition, there were characters for the Goo Fighters, bearing similarity to the Foo Fighters; 49 Percent (50 Percent); Hairosmith (Aerosmith); Pussycat Poppets (Pussycat Dolls), and the character called Avril Le Scream, who bears similarity to Avril Lavigne. Avril Le Scream is in fact only a band member in the character band called, in the Game, "The Fizzbangs". At this time also, in September 2009, Lady Goo Goo was associated in the Moshi Monsters Game with a track which is called Peppy-Razzi. The name is obviously an allusion to Lady Gaga's by this time famous track Paparazzi. By 10 th December 2009 the evidence shows that there were some 10 million registered users of the Moshi Monsters Game.

8

In March 2010 the Game featured an Underground Disco and, within the Underground Disco, the Game staged a Moshi Music Showdown competition between its various characters. What happened was that the players were encouraged to vote online and to blog their reactions to the songs featured by the individual artists, including Lady Goo Goo and the ones that I have already mentioned within the Game. Lady Goo Goo won the competition, and provoked numerous reactions online. The results were declared by the first defendant in the following way:

"Lady Goo Goo—Top of the Charts!

The results of the Moshi Music showdown are in, and you voted Lady Goo Goo to the top! Coming in at a close 2nd and 3rd were Taylor Miffed and the Pussycat Poppets. Want to know more about Lady Goo Goo? Keep reading.

Some say she's crazy, some say she's a genius. One thing's for sure, the Moshi world has gone completely gaga for Lady Goo Goo! But it's not down to her plinkity plink music (although 'Goochie Goo' and 'Yaparazzi' are real toe-tappers) or even her baby-ish dance routines. It's because this wah-wah-ing bundle of joy is a fashion icon!…"

9

The blogs which followed give a reasonable idea of the attitudes of the users at that time, in March 2010, to Lady Goo Goo's success in the Underground Disco, Moshi Music Showdown competition. I have been provided with a huge number of blogs and can only pick out a few that counsel have specifically relied on, as follows:

[1] lady goo goo rocks just as much as the actual lady gaga lol. love her! she rocks.

[2] I love Lady Gaga but Lady Goo Goo is now the best.

[3] I lurrve Lady Goo Goo. I am sooo glad she won. Did you know she also won three Brit awards, congrats Gaga!!!!!

[4] I love Lady Goo Goo's new single, it's amazing.

[5] I think she is awesome and the song is the coolest ever and I wish I met her in real life.

[6] I am Goo Goo Ga in over her songs!! I boo hoo all the others. I wawu her boo woo

[7] I love Lady Gogo and I knew she was going to win. I also voted for her on the poll. I love her music, especially Just Dance and other songs. She rox!!! [I interpose at that stage that the reference to "Just Dance" is a reference to a Lady Gaga song but not a reference to any song that Lady Goo Goo has sung within the Game or elsewhere.]

[8] She soo deserves to win. Her hit single is just like the best. All her songs are so totally wicked.

[9] Oh, yes, Lady Goo Goo is certainly very good. She is on stage right now on The X Factor. She is soooo cooool. Bye Roary, it has been a pleasure meeting you. [I interpose...

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