605 F.2d 1130 (9th Cir. 1979), 77-2435, Miss Universe, Inc. v. Flesher

Docket Nº:77-2435, 77-2710.
Citation:605 F.2d 1130
Party Name:204 U.S.P.Q. 354 MISS UNIVERSE, INC., a California Corp., Plaintiff-Appellee, v. William FLESHER, Fran Flesher, Mel Lynn and Treehouse Fun Ranch, Inc., a California Corp., Defendants-Appellants. MISS UNIVERSE, INC., a California Corp., Plaintiff-Appellant, v. William FLESHER, Fran Flesher, Mel Lynn and Treehouse Fun Ranch, Inc., a California Corp.,
Case Date:October 04, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1130

605 F.2d 1130 (9th Cir. 1979)

204 U.S.P.Q. 354

MISS UNIVERSE, INC., a California Corp., Plaintiff-Appellee,

v.

William FLESHER, Fran Flesher, Mel Lynn and Treehouse Fun

Ranch, Inc., a California Corp., Defendants-Appellants.

MISS UNIVERSE, INC., a California Corp., Plaintiff-Appellant,

v.

William FLESHER, Fran Flesher, Mel Lynn and Treehouse Fun

Ranch, Inc., a California Corp., Defendants-Appellees,

Nos. 77-2435, 77-2710.

United States Court of Appeals, Ninth Circuit

October 4, 1979

Page 1131

Thomas D. Kiley, Lyon & Lyon, Los Angeles, Cal., for defendants-appellants.

Robert E. Hinerfeld, Murphy, Thornton, Hinerfeld & Cahill, Los Angeles, Cal., for plaintiff-appellee.

Appeals from the United States District Court for the Central District of California.

Before TRASK, KENNEDY and ANDERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

This is an appeal from the grant of a preliminary injunction. 1 The district court found that there was inherent confusion of source and dilution of plaintiff's registered marks by the defendants' use of the marks "Miss Nude U.S.A." and "Ms. Nude U.S.A." 2 The defendants appeal from the entire injunction. The plaintiff appeals from one portion of the injunction. We find one part of the injunction unworkable and reverse as to it, and otherwise affirm the issuance of the preliminary injunction.

FACTS

The plaintiff, Miss Universe, Inc. (referred to as Miss Universe), is the owner of the trademark and service mark Miss U.S.A. 3 Since 1952, Miss Universe has produced the Miss U.S.A. beauty pageant. Contestants from every state vie for the crown of Miss U.S.A. The contestants, all unmarried females, are judged on various qualities such as beauty, congeniality, background, and intelligence. The winner of the contest becomes this country's representative in the plaintiff's related Miss Universe pageant which includes entrants from around the world.

The defendants include: William and Fran Flesher, who are officers of the Treehouse Fun Ranch, Inc., as well as managing agents of the Treehouse's beauty pageant; the Treehouse corporation; and Mel Lynn, director of the 1977 pageant. The beauty pageant sponsored by Treehouse is variously

Page 1132

referred to as the Miss Nude U.S.A., Ms. Nude U.S.A., and the Miss Nude International Beauty Pageant. The most obvious distinction between the two pageants arises from the fact that the plaintiff's contestants remain clothed (at least partially) throughout the contest, whereas the defendants' contestants (as indicated by the various titles) do not.

The district court made the following factual findings about the two pageants:

"3. Plaintiff's MISS U.S.A. Beauty Pageant has been broadcast on the CBS Television Network annually since 1965, sponsored by Procter & Gamble Company. In the Spring of 1976, the pageant was seen by an estimated viewing audience exceeding 60,000,000 people. The annual MISS UNIVERSE Beauty Pageant, in which MISS U.S.A. participates as a contestant, involves female contestants representing many nations. The international pageant is televised annually by Atlantic and Pacific satellite to an estimated viewing audience of 500,000,000 people in more than 40 countries. The total annual sponsor cost of the MISS U.S.A. and the MISS UNIVERSE Beauty Pageants exceeds $2,000,000.

"5. It is the policy and practice of plaintiff to conduct its MISS U.S.A. and MISS UNIVERSE Beauty Pageants in good taste and in a clean and wholesome manner. These pageants are dependent upon the goodwill of the contestants and their parents, many of whom would be likely to object if their daughters entered a MISS U.S.A. Beauty Pageant which they thought to have any relation to a MISS NUDE U.S.A. Beauty Pageant. In addition, the standards of the television broadcasting industry and of plaintiff's telecast sponsors oblige plaintiff to maintain a high moral tone to its beauty pageants and all associations therewith in the public mind.

"9. Defendants Flesher and Treehouse have promoted a beauty pageant in the County of San Bernardino in June of 1973, 1974, 1975, and 1976 under the name MISS NUDE U.S.A. Beauty Pageant. A majority of the contestants in those pageants were, at the time of competing, residents of the State of California. In none of the contests was there more than 27 contestants. Most of the States have not been represented by a contestant in any MISS NUDE U.S.A. Beauty Pageant. The entry rules for the contest have never required contestants to reside in, or be nationals, of, the United States of America. Until restrained by this Court's order, dated 7 April 1977, those defendants and defendant Lynn were publicizing promotion of a contest under the name MS. NUDE U.S.A. Since 17 April 1977, defendants have begun to promote a beauty pageant for the same time and place...

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