What types of intellectual property issues has Netflix’s popular “Tiger King” series presented?

            Netflix’s “Tiger King” has become a mainstay in many American households during this period of quarantine. Indeed, in the first few days following the hit, true-crime documentary miniseries’ March 20^th debut, more than thirty-four million viewers tuned in to follow the demise of Joe Exotic. Exotic is a self-proclaimed “gay, gun-carrying redneck with a mullet” who owns a big cat roadside zoo and animal park in Oklahoma. Moreover, those who watched learned that Joe Exotic’s intellectual property infringement was the first step in a series of negative events that eventually led to his conviction and prison sentence.

            While much of “Tiger King” tracks Exotic’s bitter, decades-long discord with animal conservationist Carol Baskin, one particular episode focuses on trademark and copyright disputes between the pair. Baskin is the owner of Big Cat Rescue, which takes in large felines and allows them to live out their days in caged conditions. Baskin’s purported goal is to make the selling of exotic cats in the United States illegal. Baskin trademarked her logo, which includes the words “Big Cat Rescue.” Later, in the heat of the pair’s bad blood, Joe Exotic named his traveling venture “Big Cat Rescue Entertainment,” with a logo that looks uncannily similar to Baskin’s.

            Notably, prior to Exotic’s use of “Big Cat Rescue Entertainment,” Baskin did not own a trademark for the phrase “Big Cat Rescue.” Instead, she merely owned a design mark for a logo that incorporated “Big Cat Rescue.” However, during prosecution of Baskin’s design mark, the trademark office required a disclaimer of “big cat rescue.” A disclaimer does not remove the disclaimed matter from the mark but is simply a statement that the trademark applicant does not claim exclusive rights in the disclaimed wording apart from the mark as shown in the drawing. In addition, just because Baskin failed to secure registration of the words by themselves, she may have nonetheless been entitled to common law protection due to her extensive prior use of the same. Thus, absent the consent judgment, Exotic may potentially have been able to prevail on his use of “Big Cat Rescue Entertainment.” That being said, due to the highly similar nature of the respective logos, as well as, the nearly identical services, Exotic likely would have lost on the design mark claim.

            Later, between 2011 and 2012, a second lawsuit was filed against Joe Exotic by Carol Baskin and her husband alleging copyright violations. This litigation arose due to Exotic’s misappropriation and posting online of various photographs to which Baskin owned copyrights. During depositions, Exotic admitted to posting the pictures but still asserted that Baskin was not the original owner of the photos. Such an argument is irrelevant in copyright law and as such, Exotic was forced to pay Big Cat Rescue Corp. damages totaling $75,000. However, as a result of the consent judgment in the trademark dispute, Exotic owed more than $950,000 in damages, for a total of over a million dollars in judgments against him. As a result, Exotic became bankrupt.

            Meanwhile, since the series’ release, multiple individuals or entities have filed trademark applications for marks including “TIGER KING” and “JOE EXOTIC.” For instance, one application for “JOE EXOTIC” is for hats, sweatshirts, and t-shirts, and was filed by a California company that presumptively has no connection to the Oklahoma-based flamboyant feline lover. By way of further example, applications for “TIGER KING” include for plush toys, clothing, bean bag chairs, decorative seasonal stockings, Halloween costumes, and multimedia goods. While these entities may believe they have gotten ahead of the curve by cashing in early on the series’ sudden popularity, their changes of security registration are most likely slim to none.

            In particular, unlike the patent system, under which the first inventor to file an application is entitled to rights (assuming the other requirements of patentability are satisfied), trademarks are not awarded based solely on a first-to-file system. Rather, for trademarks, it is the first entity that uses the mark in commerce that matters. Moreover, unless the applicants get Joe Exotic to consent to the use of his name, the Trademark Act, which bars federal registration of a mark that consists of or comprises matter which falsely suggests a connection with a famous person, will likely block these applications from registering.