Monday, April 1, 2013

Kmart Sued by McDonald's for Copyright Infringement over Easter-themed TV Commercial

 (10-Minute Updates)
     April 1, 2013

News Index From The Associative Press


Filed at 4:20 p.m. E.D.T.

By Angela Motorman
CMI Senior Investigative Editor

Corporate executives for Kmart awoke the day after Easter this year to a hangover more serious than the usual sugar overload. The retail giant received notice today that it is being sued for trademark infringement by McDonald's over an Easter-themed commercial that featured a fictional animal called a "lamb-bit", purported to be half lamb and half rabbit.

In court filings McDonald's claims the Kmart ad damaged its planned introduction of a new menu item by the same name. The "lamb-bit" commercial  gained wide popularity, despite a having only a short run on one cable network, because of rapid viral proliferation as an online video.

"It took almost seven years to develop the recipe for the Lamb-Bit, and we've held the trademark for the since 2009," said McDonald's house counsel T.C. Mits in an interview with trade publication Fast Feasts. "It took Kmart just thirty seconds to undo all that."

Mits added, "No child will ever agree to eat a Lamb-Bit, much less ask for them, after seeing it portrayed as a live, fluffy Easter gift." 

In the commercial, which aired last week in two versions on USA Network, a father played by comedian Owen Smith gives his three young children an Easter present of a white-furred, baa-ing animal with long legs and tall ears, claiming the creature is "half lamb, half rabbit". After the animal runs out out of the house, clacking its hooves on the wood floor, the father is seen calling for it to come back as he posts flyers for a lost lambbit on a utility pole.

The commercial, which last aired on USA Network March 31 and has been removed from both the Kmart website and YouTube, is viewable at the industry site iSpot.TV ( )

Kmart spokesman Dennis Menimen said the McDonald's claim is "without merit", noting that the Kmart commercial used an unhyphenated spelling with no capital letters and never referenced any food item, only candy.

The retail chain, whose clothing line is the subject of the disputed advertisement, has received "nearly a half million email requests for a stuffed lambbit", Menimen added. He indicated the retailer plans to introduce the stuffed lambbit next spring, along with new versions of the popular ad spot.

McDonald's attorney Mits said the food chain had intended to position Lamb-Bits as the newest in a series of bite-sized menu items, pairing the nugget-like chunks of fried lamb with the customer's choice of sauce dips ranging from mild minted yogurt to spicy tomato with coriander and cumin.

Fast Feasts reporter Liz Estrada pointed to the unusually high stakes for McDonald's in defending its trademark in this case, linking to previous coverage of two other menu items that never made it out of development due to similar issues. The cured hot pork cutlet sandwich to be called the Hamlet was cancelled in 2010 after complaints from the National Council of Teachers of English.

In 2012, the chopped and formed fingers of poultry meat dubbed Duck Wings failed after fans of Caldecott Medal-winning children's author Robert McCloskey joined forces with the American Library Association to refuse to make way for the new snack. Not even a campaign by endorsers Phil, Si, Willie and Jase Robertson of the cable TV hit "Duck Dynasty" was able to rescue that promotional effort.

Initial arguments in the case are expected to be heard in July, and the cable industry public affairs channel C-SPAN has already said the proceedings will be televised live.


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