Legal Dogfight Over Rin Tin Tin

LOS ANGELES (CN) - A man who claims rights to Rin Tin Tin sued a woman on 21 charges, claiming she hijacked the name of the famous dog, with the excuse that her grandmother bought a German shepherd "which may have been a descendant" of the original pooch.

Max Kleven and Rin Inc. sued Daphne Hereford, Rin Tin Tin Inc. and Belleair Trading International for $5 million in Federal Court.

Kleven alleged copyright and trademark infringement, unfair competition, elder abuse and other claims. He claims that Hereford and her companies pushed their way into the picture 50 years after the original Rin Tin Tin was found on a battlefield during World War I.

"The sole source or 'basis' of multiple attempts to unlawfully exploit the name and fame of the character Rin Tin Tin is the purchase by the grandmother of defendant Daphne Hereford ('Hereford') of a German Shepherd dog which may have been a descendant of the dog Rin Tin Tin," the complaint states. "That - and that alone - is the sum total of the 'basis' for defendants' hijacking of this icon of American television, film and culture."

Kleven claims the defendants "have deliberately and willfully attempted to profit from creating a false association between themselves and the source of the popular and successful copyrighted fictional works featuring the iconic fictional German Shepherd character named Rin Tin Tin that are now owned by plaintiffs."

Kleven's 54-page lawsuit, with 44 pages of attachments, presents a detailed history of how he claims he acquired rights to Rin Tin Tin.

It all began in 1918 when U.S. Lt. Lee Duncan found a litter of newborn German shepherd puppies on a battlefield in France I.

"Duncan rescued the litter and kept one male and one female for himself whom he named Rin Tin Tin and Nanette, respectively. Throughout the remainder of his deployment, Duncan grew hopelessly devoted to his puppies, spending the majority of his free time caring for them and training them," according to the complaint.

Rin Tin Tin was the subject of a 2011 biography by New Yorker staff writer Susan Orlean. The story is recapitulated in this complaint.

Duncan brought Rin Tin Tin and Nanette back to America, but Nanette didn't survive the trip. A breeder gave Duncan a female puppy that would eventually become known as Rin Tin Tin's wife, also named Nanette. Duncan trained his dogs when he got home and began showing off Rin Tin Tin at dog shows.

"One day, Duncan and Rin Tin Tin, whom Duncan nicknamed 'Rinty,' were accompanied to a dog show by a friend who brought with him a newly developed slow motion camera. That day Rin Tin Tin competed in the 'working dog' part of the show and took first place by cleanly jumping a wall made of wooden planks nearly 12 feet tall. Duncan's friend caught the act on film. After this day, Duncan became increasingly interested in getting Rinty on film," according to the complaint.

After newsreel company paid for the film, Rin Tin Tin got some few small parts playing a wolf or a wolf hybrid in movies. Duncan began writing a screenplay, "Where the North Begins," for Rin Tin Tin to star in, which was eventually made into a movie by "a small studio owned by four brothers, the Warner brothers."

"1923's 'Where the North Begins' was an enormous success often credited with saving Warner Bros. from bankruptcy," the complaint states. "Warner Bros. made 24 more movies starring Rin Tin Tin, each of which was enormously popular, earning Rin Tin Tin the nickname 'The Mortgage Lifter' by Jack Warner. He had become a household name throughout the country as a true movie star.

"In 1927, the Academy Awards were presented for the first time and Rinty received the most votes for 'Best Actor,' but the members of the Academy decided that the Oscar should go to a human."

Rin Tin Tin eventually achieved immortality as "a fictional character and a legacy," Kleven says.

Duncan bred Rin Tin Tin and Nanette and selected offspring to follow in their father's footsteps. Rin Tin Tin's progeny began to play the part of Rin Tin Tin in movies as the real Rin Tin Tin aged.

"Duncan used to famously say, 'There will always be a Rin Tin Tin!'" the complaint states.

After Rin Tin Tin died in 1932, his offspring continued to play him in Rin Tin Tin movies and the 1950s TV show, "The Adventures of Rin-Tin-Tin."

Leonard and Duncan sold merchandise from the show, including a Rin-Tin-Tin cavalry mess kit, hat, bugle, gun and holster, lunch box, thermos bottle, and mechanical games, many of which are still being sold online, according to the complaint.

After Duncan died, his wife, Eva Duncan, turned over the Rin Tin Tin copyrights to Leonard, who continued to write scripts starring Rin Tin Tin, according to the complaint.

"Leonard was liked and trusted by most everyone that knew him but at this time in his life his luck had turned and he owed large amounts of money to many people," the complaint states. "In 2002, he was diagnosed with cancer and shortly thereafter moved in with his longtime friend Kleven, who was one of the stuntmen in 'The Adventures of Rin-Tin-Tin.' In resolution of a large debt owed to Kleven, in 2005 Leonard assigned all of his intellectual property rights in Rin Tin Tin to Kleven. Kleven became the legal owner of all of the copyrights and common law trademarks rights in and to the Rin Tin Tin legacy.

"Beginning with Duncan in 1923, then Duncan and Leonard, then Leonard alone, then Leonard and Kleven, then Kleven alone, and now Kleven and Rin, Inc., the originator of the Rin Tin Tin legacy and his lawful successors have continuously created, pitched, marketed and promoted Rin Tin Tin for almost a century."

Enter the defendants, whose story "begins some 50 years after Duncan discovered the litter of German Shepherd puppies on a World War I battlefield, and long after the name and character Rin Tin Tin had become known world-wide through movies, television shows, books and merchandise," according to the complaint.

In 1957, Duncan sold the first of four German Shepherd puppies he represented as being Rin Tin Tin IV's puppies to a woman named Jannettia Propps Brodsgaard, the complaint states.

"Brodsgaard and eventually her granddaughter, Hereford, began to breed and sell the puppies with the apparent intent of preserving the purported Rin Tin Tin bloodline. This in itself was not an issue, but Hereford began to confuse her ownership of dogs which purportedly shared the bloodline of the dog Duncan found in France in 1918 with the ownership of the Rin Tin Tin legacy - and the unlawful exploitation of the iconic Rin Tin Tin character, name and fame," according to the complaint.

Hereford eventually filed for a federal trademark registration for the Rin Tin Tin; Kleven claims he sued her, but dropped it after they reached a settlement agreement. The agreement stated that Kleven had common law trademark rights in Rin Tin Tin and was assigned the Rin Tin Tin mark and character by Lee Duncan, according to the complaint.

Under the agreement, so long as Hereford's use of the Rin Tin Tin mark was "limited to identifying her dogs as descendants of Rin Tin Tin IV in connection with the breeding, raising, training, and selling of German Shepherd dogs, such use is not likely to cause confusion with Herbert B. Leonard's use of the Rin Tin Tin mark and character," the complaint states.

Kleven claims that Hereford declared in court that she understood the terms of the settlement, which gave her a limited right to use the mark for fan club services and allowed her to use the mark only to describe the dogs she bred as descendants of Rin Tin Tin IV.

But despite the settlement, two more lawsuits followed and defendants are still infringing on the Rin Tin Tin mark, Kleven claims.

"Defendants' continued efforts to commandeer the Rin Tin Tin legacy include, without limitation, the fraudulent filing of federal trademark applications for the mark Rin Tin Tin, marketing for sale merchandise clearly - but falsely - advertised and depicted as being part of the Rin Tin Tin legacy, and falsely representing to others that they and they alone are the rightful holders of that legacy. Despite having absolutely no connection to the creation or ownership of any original or authorized film or television works featuring - and which created - the Rin Tin Tin icon, defendants are attempting to profit off the creative efforts of the true owners of the Rin Tin Tin trademark and copyrights in the works that feature the fictional character Rin Tin Tin," according to the complaint.

Kleven claims that he and his predecessors' have been using the common law trademark Rin Tin Tin continuously since 1923 and would like to continue to do so through the production of movies, television shows and merchandise. He claims that defendants' "unlawful claim to intellectual property rights" for Rin Tin Tin interferes with this.

The defendants use the Rin Tin Tin character to sell books, cards, clothing, collars, leashes, dog treats, plush toys, games, and grooming supplies, the complaint states.

"Defendants hold the false and misguided belief that receiving a federal trademark registration through fraud and omission confers upon them legally enforceable trademark rights," the complaint states.

"Defendants have never received authorization from any owner of one or more of the multiple copyrighted works that created or contributed to the legacy of the iconic fictional German shepherd character named Rin Tin Tin to create a derivative work. Therefore, defendants cannot have legally acquired any copyrights in any works created by defendants that feature the iconic fictional German Shepherd character named Rin Tin Tin."

Kleven wants the defendants prohibited from using the Rin Tin Tin mark, cancellation of their trademark applications and registrations, transfer of the Internet site www.rintintin.com , and punitive damages.

He is represented by Kevin Welch in Hermosa Beach.

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