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AVATAR versus THE LAST AIRBENDER

Hasdi March 21, 2011 User blog:Hasdi

As we all know by now, Avatar: Legend of Korra is now The Last Airbender: Legend of Korra. I made a few comments (on another blog and elsewhere) that this may be a fallout of the Avatar "naming war" between James Cameron’s Avatar and Nickelodeon Avatar: The Last Airbender, respectively fought by Twentieth Century Fox (FOX) and Viacom International (VIACOM), the parent company for Paramount Pictures and MTV Networks that includes Nickelodeon.

What actually happened is more complicated so this is my feeble attempt to simplify the real story. If you insist on being accurate and going into the details, feel free to check out the External Links below and learn for yourself. I am not a trademark attorney, so nothing I say should be considered a legal opinion – if any you try to argue a case in a court law based on what I blog, then you are an idiot. This post is my personal opinion based on public records and known facts, so take what I say with a dose of salt and pepper.

Some fans may be reprehensive about the name change because it reminded them of that movie. I find it laughable that The Last Airbender is associated with M. Night Shyamalan. If anything, Shyamalan is trying to associate his movie with the original series Avatar: The Last Airbender (A:TLA). The full title of the movie is M. Night Shyamalan’s The Last Airbender (MNS-TLA). What happens if James Cameron kept his mouth shut and the movie was called M. Night Shyamalan's Avatar: The Last Airbender (MNS-A:TLA)? Are you going to stop watching the original series? The movie is just the first casualty of the naming war, and Legend of Korra is just the second.

Since VIACOM has already secured the trademarks for THE LAST AIRBENDER for TV-related, clothing, AND gaming products, Nickelodeon may have figured it is more advantageous to name the franchise The Last Airbender, and make Legend of Korra a product of this franchise. Korra may not technically be an Airbender, or the last one even if she is an Airbender. Products of a franchise do not have to reflect the franchise name exactly…

  • Ben 10: In the follow-up to Ben 10 TV series, Ben 10: Alien Force and Ben 10: Ultimate Alien, Ben is no longer a 10-years-old kid and has access to much more than 10 aliens.
  • Twilight: The name of this franchise is based on the name of first book. The other three books are called New Moon, Eclipse, and Breaking Dawn. Does The Twilight Saga: Breaking Dawn even made any sense?!!
  • Resident Evil: the original game was called as such as it took place in an evil housing residence but the settings for the game sequels and movies are now all over the world. It was originally called Biohazard but they couldn't trademark that in America.
  • Final Fantasy: If the fantasy is “final”, why does it keep on going and going and going?!
  • Street Fighter: The fights no longer take place just on the streets now does it?
  • Dungeons & Dragons: The games and shows no longer took place exclusively in dungeons and hardly showed any dragons…

Battle of the MPAA Title Registration Bureau

Film titles are normally registered via MPAA Title Registration Bureau, rather than US Patent and Trademark Office (USPTO). The Bureau is a voluntary central registration entity for titles of movies intended for U.S. theatrical distribution, and it is intended to prevent public confusion over films with similar titles. [1] Although not part of the US government, its subscribers (currently almost 400, including FOX and VIACOM) are bound by the Bureau's rules, which prescribe procedures for registering film titles and handling any related disputes.

The fight started in January 8, 2007 [2], the same day M. Night Shyamalan was attached to the film adaptation of Avatar: The Last Airbender. A Fox representative said, "We own the movie title 'Avatar.' There won't be another film called 'Avatar' coming from anyplace." Development on Avatar began in 1994, when Cameron wrote an 80-page scriptment for the film.[3] Filming was supposed to take place after the completion of Cameron's 1997 film Titanic, for a planned release in 1999,[4] but according to Cameron, the necessary technology was not yet available to achieve his vision of the film.[5] VIACOM initially registered the film title as Avatar: The Last Airbender and wanted to keep it that way. In the end, VIACOM conceded to FOX and dropped the word Avatar from the film title, hence just The Last Airbender. There is an interesting video interview @ 3:48 with M. Night Shyamalan that talks about the discussion that went on between VIACOM and FOX.

Video:Moviefone_Fan_Interview_with_M._Night_Shyamalan_about_The_Last_Airbender

Game. Set. Match.

Battle of the US Patent and Trademark Office (USPTO)

As George Lucas had demonstrated with Star Wars, the real money for movies is in merchandising! Trademarks for most consumer products are normally done via US Patent and Trademark Office (USPTO). Context is relevant with trademarks, e.g. the Ford trademark for Ford Motor Company is for vehicle products while the Ford trademark for Ford Modeling Agency (a separate company) is for modeling services. Each “context” is assigned with a 3-digit code of international class (IC).


Trademarks for JAMES CAMERON’S AVATAR

Before the movie was released in December 2009, FOX made two simultaneous applications for the trademark JAMES CAMERON’S AVATAR. The first application 77758033 (received by USPTO and filed on 2009-06-12) is for products of international class 009 and 041:

FOX got clobbered with this one because (surprise!) VIACOM had prior trademarks for AVATAR, all for products of IC 041 (Education and entertainment):

FOX argued with USPTO that there is no way you can confuse JAMES CAMERON’S AVATAR with VIACOM’s trademarks on AVATAR (which sounds similar to VIACOM’s argument with MPAA to me =P). USPTO was adamant about this: “The examining attorney has considered the applicant's arguments carefully but has found them unpersuasive.” On 2010-10-05, FOX filed an express abandonment of this application.

However, FOX was more successful with the second application 77758035 (also received by USPTO and filed on 2009-06-12), for products of international class 016, 018, 024, and 028. Apparently, Nickelodeon did not foresee the animated series to turn into a franchise that it is today, much less have its own a live-action summer movie, so VIACOM did not apply for AVATAR trademarks for products other than IC 041. USPTO published this application for opposition in 2010-12-14, and then allowed FOX to use the trademark on 2011-02-08.

The application originally also included the following products:

FOX had to remove this class of products (IC 025) from the application because it conflicted with AVATAR trademark owned by Uni Hosiery (IC 025): "MEN'S, WOMEN'S AND CHILDREN'S CLOTHING, NAMELY, SOCKS, HOSIERY, UNDERWEAR, LINGERIE AND T-SHIRTS."


Trademarks for THE LAST AIRBENDER

Before the M. Night Shyamalan’s film was released in July 2010, VIACOM filed three simultaneous applications (85015596, 85015599, and 85016855) for the trademark THE LAST AIRBENDER, respectively for international class of products 025, 028, 041. USPTO received the applications on 2010-04-16 and 2010-04-19. The term was unique enough that the process went smoothly; USPTO allowed VIACOM to use the trademarks for all three class of products on 2010-09-28. The application could be for merchandising for Shyamalan’s film itself but interestingly, the application for IC 041 is for TV-related products, not motion pictures as in the case with IC 041 application for JAMES CAMERON’S AVATAR.


Trademarks for NICKELODEON AVATAR: LEGEND OF KORRA

A month after VIACOM applied for THE LAST AIRBENDER, VIACOM filed another three simultaneous applications (85041868, 85041871, and85041873) for the trademark NICKELODEON AVATAR: THE LEGEND OF KORRA, respectively also for international class of products 025, 028, 041. USPTO received the applications on 2010-05-18. Unfortunately, these applications did not go as smoothly.

This application failed for the same reason FOX couldn’t with JAMES CAMERON’S AVATAR – it conflicted with AVATAR trademark owned by Uni Hosiery (IC 025) : "MEN'S, WOMEN'S AND CHILDREN'S CLOTHING, NAMELY, SOCKS, HOSIERY, UNDERWEAR, LINGERIE AND T-SHIRTS"

This application got suspended because FOX's second application 77758035 for JAMES CAMERON’S AVATAR (IC 028) was still pending. Since USPTO has given FOX a notice of allowance on 2011-02-08, VIACOM's application for this is likely to be refused.

This should have been a slam-dunk, since VIACOM owns trademarks for AVATAR HIGH, NICKELODEON AVATAR: THE LAST AIRBENDER, and AVATAR: AUTUMN TWILIGHT for IC 041 products. Unfortunately, the application was delayed because FOX’s first application for JAMES CAMERON’S AVATAR (IC 041) was also pending, even though FOX eventually abandoned it on 2010-10-05. On 2011-03-16, USPTO approved VIACOM’s application to be published for opposition in the Official Gazette on 2011-04-19. If no one (including FOX) opposes this application after a month or so, USPTO may allow VIACOM to use this trademark.

Interestingly, upon inquiry from USPTO, VIACOM clarified that “KORRA appearing in the mark has no significance nor is it a term of art in the relevant trade or industry or as applied to the goods/services listed in the application, or any geographical significance.

Aftermath

On March 6th 2011, Nickelodeon announced the new name for the series THE LAST AIRBENDER: LEGEND OF KORRA[6]. It kind of makes sense: the trademark applications for “NICKELODEON AVATAR: LEGEND OF KORRA” are wrought of problems; as it is, limited to only TV-related products (IC 041) and can still be opposed by FOX or others. Nickelodeon is not taking any chances and may have chosen to withdraw from the fight. Even if USPTO finally allowed VIACOM the use of the trademark, Nickelodeon cannot use it for clothing (IC 025) and gaming (IC 028) products, so no KORRA underwear and lingerie for you. =P UPDATE: On 2011-03-21, USPTO has received three trademark applications from VIACOM for THE LAST AIRBENDER: LEGEND OF KORRA.

On the other hand, VIACOM owns the trademarks for THE LAST AIRBENDER for all three classes of products. VIACOM can also come up with any new show related to THE LAST AIRBENDER without going through USPTO again (such as The Last Airbender: Adventures with Jinora! for pre-K audience like Dora the Explorer). After M. Night Shyamalan’s film adaptation has made $319,123,021 worldwide[7] and nominated 9 times for the Razzie Awards (and won five) [8], no one will ever forget and acknowledge that THE LAST AIRBENDER truly belongs to VIACOM and no one else. o.O

I end this blog with an “exclusive” M. Night Shyamalan interview that also touches upon this AVATAR naming issue. =P

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