Trademark Infringement. Elvis Presley Enterprises, Inc (EPE), owned all of the trade-marks of the Elvis Presley estate. None of these marks was registered for use in the restaurant business. Barry Capece registered "The Velvet Elvis" as a service mark
for a restaurant and tavern with the U.S. Patent and Trademark Office. Capece opened a nightclub called "The Vel-vet Elvis" with a menu, decor, advertising, and promotional events that evoked Elvis Presley and his music. EPE filed a suit in a federal district court against Capece and others, claiming, among other things, that "The Velvet Elvis" service mark infringed on EPE's trademarks. During the trial, witnesses testified that they thought the bar was associated with Elvis Presley. Should Capece be ordered to stop using "The Velvet Elvis" mark? Why or why not?
Trademark infringement
The court held, among other things, that the service mark, "The Velvet Elvis," did not infringe on the trademarks of Elvis Presley Enterprises, Inc. (EPE), and EPE appealed. The U.S. Court of Appeals for the Fifth Circuit reversed this judgment and remanded the case for an order to Velvet to stop infringing on EPE's marks. The court concluded that a likelihood of confusion existed between EPE's marks and "The Velvet Elvis" mark. EPE's marks are very strong. The nightclub's ads "imbued ‘The Velvet Elvis' mark with a meaning that directly evokes Elvis Presley" and "evidenced an intent to market the bar by relying upon the drawing power of Elvis." Also, "[g]iven that EPE licenses so many products and is a strong presence in the entertainment business and that Planet Hollywood and Hard Rock Cafe have shown the success and popularity of entertainment and music-themed restaurants, the restaurant and bar business with live music is a natural area of expansion for EPE." The court also emphasized that witnesses testified they thought the bar was associated with Elvis Presley.
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