MANHATTAN (CN) — Urging the Second Circuit to revive trademark claims against Oprah, an attorney for a motivational speaker complained that he needs time to depose tennis champion Serena Williams.
Though Winfrey advised Williams on her television show to "own her own power," attorney Robert Levy said truncated discovery kept him from deposing Williams on behalf of his client, Simone Kelly-Brown.
Levy made the argument in closing remarks today before the Second Circuit, which he hopes will revive Kelly-Brown's trademark-infringement suit against Winfrey.
The popular talk-show host has been locked in litigation with Kelly-Brown since she used the "Own Your Power" on the October 2010 cover of O Magazine, highlighting an article about her annual "power list."
Winfrey also used "Own Your Power" as the title of a panel discussion with some of the power players coroneted in 2010, including journalist Diane Sawyer, designer Vera Wang and actress Julia Roberts.
Kelly-Brown noted that she had registered the phrase to promote her "personal brand of self-awareness and motivational communications services nationally," and today's hearing marks the second time she has urged the Second Circuit to revive her case.
Representing Winfrey for Hearst, attorney Jonathan Donnellan told the three-judge panel that the First Amendment shields Winfrey's use of "Own Your Power," since the phrase is editorial and descriptive.
Winfrey use of the phrase even dates back to 1981, including a 1993 commencement speech at Spellman College.
Citing expert testimony and three unrebutted surveys, Donnellan emphasized that there is no evidence of the likelihood of confusion, which he called the "central issue in trademark."
Kelly-Brown's attorney Levy argued on rebuttal that emails showed Kelly-Brown's business associates were confused about the phrase.
But Winfrey's attorneys wrote in a September 2015 brief that such "evidence would be de minimis as a matter of law."
Donnellan called it "arbitrary" when Patricia Lawrence-Kolaras, another attorney for Kelly-Brown, brought up a Lanham Act case involving Crest toothpaste.
Donnellan said the Crest case established that "the only protectable part is the color and the font."
Levy urged the court to let him investigate Winfrey's finances, as well as depose Serena Williams.
The Second Circuit panel featured Judges Debra Ann Livingston, Denny Chin and Susan Carney.
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