Intellectual Property Law

Ninth Circuit Affirms Dismissal of Author's Claim of Trademark Infringement

By Michael Atkins

Pro se plaintiff Cherie Phillips wrote a book titled “Wisdom Bible of God.” She claimed she has trademark rights in that title because it is arbitrary and inherently distinctive, and because it has acquired secondary meaning. In her complaint, filed in 2007 in the District of Hawaii, she alleged that defendant Mike Murdock’s book, “The Wisdom Bible,” infringes her trademark rights. (Both parties are depicted above.)

Last year, the District of Hawaii granted summary judgment for Mr. Murdock and Mike Murdock Evangelistic Association, finding that Ms. Phillips’ trademark was descriptive, requiring proof of secondary meaning. “Plaintiff argues that the ‘Wisdom Bible’ title is arbitrary and automatically entitled to trademark protection. Plaintiff’s description of her own writings contained in the book, however, reveals the title ‘Wisdom Bible’ is descriptive. Plaintiff describes her work as a compendium and reinterpretation of ancient wisdom from the great religions and philosophies. The book is a collection of the wisdom of ancient religious texts and philosophers; a book meant to be an authoritative text, a ‘bible,’ of ancient wisdom. Phillips’ work is the collection of sacred texts of the Stoic religion. The text of the book falls under the accepted definition of the word ‘bible,’ as defined as a book regarded as the authoritative text on a subject. The title ‘Wisdom Bible’ describes the contents, and what the author intends the book to convey, precisely.”

The court also rejected Ms. Phillips’ claim of secondary meaning. “Here, Plaintiff asserts that her work is broadly known. Plaintiff states that the title Wisdom Bible has been used in commerce since 1999, when the book was allegedly sold to ‘Canadians’, alleges that a copy of the work was sent to the Virginia State Library, and alleges that in 2001 the book was ‘placed on the worldwide internet.’ Phillips fails to proffer any evidence in support of the statements.”

Ms. Phillips appealed dismssal on these grounds, but to no avail. On July 28, the Ninth Circuit affirmed the court’s determination in summary fashion, saying little other than: “The district court properly granted summary judgment on Phillips’s trademark infringement claim because the term ‘Wisdom Bible’ is descriptive, and Phillips failed to raise a triable issue that the term has acquired secondary meaning.”

The case cite is Phillips v. Mike Murdock Evangelistic Association, No. 08-16925, 2009 WL 2242423 (9th Cir.) (July 28, 2009).

Full post as published by Seattle Trademark Lawyer on August 03, 2009 (boomark / email).