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Duke Caboom Lawsuit – Deep Dive

September 26, 2020Sean Nyberg

If you follow Disney news you likely saw reporting that Disney is being sued by Evel Knievel’s son over the Duke Caboom character from the 2019 Toy Story 4 film. I decided to take a closer look at the lawsuit to give you a better understanding of what is being claimed and why.

So, let’s strap on our stunt man helmet and jump right into this lawsuit. Legal Disclaimer: the previous sentence that referenced “stunt man helmet” was a general reference to motorcycle safety and is not intended to interfere with or diminish the value in the rights associated with any IP. Okay, I think I am safe, now, let’s see what is underneath the hood of this lawsuit.

When: Lawsuit Filed on 9/22/2020 

Who: K&K Promotions (who own the rights to Evel Knievel) filed a lawsuit against Disney Enterprises, Pixar, Walt Disney Pictures, Walt Disney Motion Pictures Group, Disney Consumer Products, Disney Store USA, and The Disney Store. 

Where: The lawsuit was filed in the US District Court in Nevada and alleges claims that are dictated by Federal Law (IP violations, etc) and one State Law claim that is being heard in the Federal court.

What: K&K Promotions make six claims:

  1. Right to Publicity
  2. Trade Dress Infringement
  3. False Endorsement/False Description
  4. Trademark Dilution
  5. Nevada State Law claim of Trademark Infringement/Unfair Competition
  6. Nevada State Law claim of Unjust Enrichment

While all of those claims are separate and allegations, they essentially make the same general argument. They allege that Evel Knievel created a specific persona that is distinguishable by its look and other unique characteristics, this persona has real property value, and this persona was owned by K&K Promotions. They allege that Disney created a character that was intentionally made to look, sound, and act like Evel Knievel’s unique persona. They further allege Disney knew that his persona was owned by this entity. They also allege that Disney (they claim) did not seek permission to use the likeness. And, Disney (they allege) made a bunch of money off of this persona from ticket sales and merchandise, caused confusion for the consumer about who owns this persona, and made the persona less valuable.

These claims are all allegations and have yet to be proven.

What do they want?

K&K Promotions is seeking “an award of actual damages, compensatory damages, statutory damages, and profits stemming from Defendants’ (alleged) unlawful conduct in an amount to be determined at trial.”

Basically they want a cut of the merchandise and profits from the film.

They also are seeking punitive damages, which (essentially) are orders to pay money that are not to reimburse or make whole any lost profits, rather, they are meant as a punishment. Civil courts do not usually award punitive damages, they prefer making all parties whole, not punishment, but they can award these in some situations.

They are also seeking attorneys fees and court costs. Which aren’t often awarded, but are always asked for.

So, what happens next? 

Disney will get to respond. All we have read are the official court filings of K&K promotions. Disney will have a chance to respond, but it won’t likely be as detailed as K&K’s pleading. There is also a strong likelihood that this will all be settled out of court and the case will be dismissed. In criminal court, if the defendant and the prosecutors make a deal, the deal is made public as the defendant pleads guilty in open court to a lesser charge. However, civil cases are different and the system is setup in away that actually encourages parties to settle matters privately outside of court. If this were to happen, we would not know the terms of the settlement. 

Disney denies the allegations and has released the following statement: “The claims are without merit and we intend to defend against them vigorously in court.”

My personal opinion:

A quick read through this synopsis would leave most people with a feeling that Disney did something wrong. I want to caution that that should not be your impression on this case. My summary of the case was from a detailed and unchallenged 29 page allegation from K&K Promotions. When you are presented with only one set of allegations, it is easy to be persuaded. But it is important to be aware that we do not have Disney’s response to these claims. Things are never as clear as they appear in a plaintiff’s initial court filing. 

I can imagine someone reading this and seeing Toy Story 4 and thinking “well, yeah! Evel had a motorcycle and did tricks in the 70’s and sold a toy version of himself. Duke Caboom was a character that did stunts on his motorbike and was a toy sold in the 70’s. That has to be bad, Disney is in trouble.”  

It is not that simple, nor should it be. IP law is very complex and, if you plan to practice law in the field of IP, you actually have to pass an additional Bar Exam that’s focused on IP. Just know, it is very complex and there is a lot of leeway given in some areas and not so much in others. 

A simple example to think about would be with beloved Disney characters. We all know how Mickey Mouse looks, right? Now, does that mean that no other company can make a cartoon of a mouse? Obviously not. Disney doesn’t own all cartoon mice. Now, think about that. You’ve got a picture of Mickey and you are creating a new mouse cartoon, at what point do you start violating Disney’s property rights in Mickey? It’s always a gray area that can get super technical and it also can rely on luck. 

This case is not a slam dunk for K&K promotions. There are so many issues that pop out right away:

  • Is Duke Caboom a rip off of Evel Knievel? If not exactly, was it enough to cause harm to the Evel Knievel persona? 
  • Did Disney actually get permission and the petitioners are now wanting to take back the permission to get more money? 
  • If there is a finding that the likeness of the two characters created a trademark violation, did Disney do so intentionally? Intent is very hard to prove. 
  • Do K&K Promotions even own the rights to Evel Knievel?
  • Did the Duke Caboom character actually lessen the value of the Evel Knievel property?

These are important questions, but they are ones that just popped into my head. There are going to be a couple hundred questions that need to be answered.

I think it is a fascinating case because I remember Evel Knievel and I also loved Toy Story 4. I am excited to see how this turns out. While it is likely going to be settled outside of the court, without us knowing what Disney’s defenses were, I do hope the process moves along a little further in the court so we can get some idea how Disney responded to the allegations. Then again, who knows, this case could go all the way to an open and public trial with witnesses and a jury. That is highly doubtful but possible.

I will keep everyone updated on any new developments on TheDisInsider. Stay tuned.


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    Duke Caboom Lawsuit – Deep Dive

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