BETTER CALL SAUL BETTER CALL AN IP LAWYER

AMC Networks and Sony Pictures are defendants in a recently filed lawsuit alleging trademark infringement, defamation and assorted other torts, based on two episodes of the popular show “Better Call Saul.”  The two episodes include Saul’s interactions with “Sweet Liberty Tax Services.”  The plaintiff in the suit is JTH Tax, LLC d/b/a Liberty Tax Service.  Liberty contends that the depiction of Sweet Liberty as a scam operation run by ex-convicts is actionable.

We’ll see.  Apparently, the fictional Sweet Liberty operation is housed in a trailer in the New Mexico desert and is adorned with mini Statue of Liberties and U.S. flag murals.  Those features look a lot like a standard Liberty Tax operation, which also features mini Statues of Liberties and lots of red, white and blue. But that may not be sufficient.  Liberty, in own words, is one of the largest and most well-known tax preparation service franchisors in the United States.  Sweet Liberty is a one shop operation, stuck in the middle of nowhere.  It’s business involves skimming tax refunds from customers.  In the sleazy world of Better Call Saul, it is right at home.

And the over the top sleaziness of Sweet Liberty may save AMC and Sony from liability.  While “libel in fiction” is a real thing, it requires that viewers actually think Liberty (as opposed to Sweet Liberty) is the subject of the portrayal.  So the worse the depiction of Sweet Liberty, the less likely it is that a reasonable viewer would be confused by the depiction or conclude that the fictional service is actually intended to depict the real service.  It will be interesting to see if this complaint survives a motion for summary judgment.  I’m betting not.