The Chicken's services are marketed to sports organizations and other parties that book appearances. Slapstick comedy and physical pratfalls are recurring themes in the Chicken's routines. The Chicken has performed comedy routines lampooning Howard Cosell, Gumby, the Energizer bunny, Vanilla Ice, Pete Rose, Michael Jackson, Elvis, and Inspector Clouseau. The Chicken also parodies and satirizes prominent entertainment celebrities and fictional characters. His antics frequently target umpires, referees, and unsuspecting athletes. The Chicken is widely known as a comic performer. He is currently booked on approximately 150 dates each year for professional sporting events, charities, trade shows, and parades. The Chicken has performed around the world for more than 60 million people. In 1979, Giannoulas formed defendant TFC through which he offers his services as the Chicken. By 1978, the Chicken had become a national celebrity. Giannoulas then developed the concept of a sports mascot in a chicken costume and created his own original gestures, pantomimes, and comedy routines. The Chicken made his debut in March 1974 when defendant Giannoulas wore a chicken costume to distribute Easter candy at the San Diego Zoo as part of a radio station promotion. Barney is widely known and enjoys tremendous success throughout the United States and elsewhere. Barney's primary target audience is preschoolaged children whose parents are the actual purchasers of Barney merchandise. He is a wise, yet innocent, friend who provides a secure, friendly, loving feeling for preschool children and who consistently demonstrates the values of love, basic trust, and civility. Barney is a positive, wholesome character who encourages children to use their imaginations and to solve problems. Plaintiff is engaged in the creation, production, and distribution of books, videotapes, television programs, and plush dolls featuring these characters. Plaintiff is the creator and owner of Barney and related dinosaur characters. Plaintiff is a limited partnership and the successor-in-interest to DLM, Inc., a Texas corporation that, in 1988, released three videotapes featuring Barney, a purple and green dinosaur "brought to life" through the imagination of young children. The facts giving rise to plaintiff's complaint are essentially undisputed: Nevertheless, the court is considering the motions. Neither motion complies with the requirements of Local Civil Rule 56.3 of the Local Rules of the United States District *950 Court for the Northern District of Texas. Plaintiff's motion does not address the issue of damages. Plaintiff and defendants have each filed motions for summary judgment. Plaintiff seeks an accounting and impoundment and destruction of the costumes used in the offending skits. Plaintiff sues defendants for trademark infringement, false description, unfair competition, dilution of trademark, and for infringement of copyright. Plaintiff takes umbrage at an act performed by defendant Giannoulas appearing as The Famous Chicken (the "Chicken") in which a Barney-type character appears. Plaintiff alleges that it is the creator and owner of Barney, "a purple, highly stylized `Tyrannosaurus Rex' type dinosaur character with a friendly mien, a swath of green down his chest and stomach, and green spots on his back," Plaintiff's Complaint at 2, ¶ 9, and that it owns a number of trademark and service mark registrations in and to the Barney character's name, likeness, logo, and color combinations and a number of copyrights for performances in which Barney has appeared. On October 8, 1997, plaintiff filed its original complaint in this action. The court, having considered the motions, the responses, the replies, the record, the summary judgment evidence, and applicable authorities, finds that defendants' motion should be granted and that plaintiff's motion should be denied. ("TFC"), for summary judgment and the cross-motion of plaintiff, Lyons Partnership, L.P., for partial summary judgment. Cole, Latham & Watkins, San Diego, CA, for Defendants.Ĭame on for consideration the motion of defendants, Ted Giannoulas ("Giannoulas") and TFC, Inc. Truitt, Andrews & Kurth, Dallas, TX, Kenneth M. Sims, Jr., Russell Lowell Reid, Jr., George Harvey Dunn, III, Vinson & Elkins, Dallas, TX, for Plaintiff.
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