Phoenix Entertainment v. Rumsey, No. 15-2844 (7th Cir. July 21, 2016).
The 7th Circuit affirmed dismissal of two trademark claims brought by a karaoke company, a serial trademark plaintiff, because the plaintiff had not plausibly alleged that the defendants' conduct resulted in consumer confusion as to the source of any tangible good sold in the marketplace. Applying the Supreme Court's Dastar decision distinguishing between copyright and trademark claims, the Court noted: "In evaluating Slep-Tone's claims of trademark infringement, we must therefore ask ourselves what the tangible good at issue is, and whether the unauthorized use of the plaintiffs' marks (including trade dress) might cause consumers to be confused about who produced that good. Or is the real confusion, if any, about the source of the creative conduct contained within that good? If the latter, the confusion is not actionable under the Lanham Act." In the instant case, "The defendants are not selling compact discs with karaoke tracks and billing them as genuine Slep-Tone tracks, in the way that a street vendor might hawk knock-off Yves Saint Laurent bags or Rolex watches to passers-by. Whatever wrong the defendants may have committed by making (or causing to be made) unauthorized copies of Slep-Tone's tracks, they are not alleged to have held out a tangible good sold in the marketplace as a Slep-Tone product. Consequently, the defendants' alleged conduct is not actionable as trademark infringement."