[Guest post] Can Keyser Söze elude the Danish courts? On fictional characters and names – the inspiration of Keyser Söze when choosing a trade mark for your business

The IPKat is pleased to host the following guest contribution by Katfriends Jakob Plesner Mathiasen and Hanne Kirk (Gorrissen Federspiel) on a recent Danish decision concerning trade marks and fictional characters.

Here's what Jakob and Hanne write:

Can Keyser Söze elude the Danish courts? On fictional characters and names – the inspiration of Keyser Söze when choosing a trade mark for your business

by Jakob Plesner Mathiasen and Hanne Kirk

Keyser Söze is the main antagonist in Bryan Singer’s movie classic The Usual Suspects from 1995. In the movie, Keyzer Söze is described as a crime lord with a legendary and mythical status with regard to brutality and impact. Feared by criminals and police force alike and always able to elude the courts, the character is never seen in the movie and is only described through flashbacks from the con artist Roger Kint under police interrogation. The movie leaves it open to the viewer to decide whether the crime lord is in fact real or merely an urban legend. As the character Roger Kint puts it in the movie: "The greatest trick the Devil ever pulled was convincing the world he didn't exist".

26 years after the movie was released, the Danish courts might finally have caught up with Keyser Söze. At least the character plays a central part in a ruling from November 2021 from the Danish Maritime and Commercial High Court.

The case concerned the protection of the trade mark ’Kejser Sausage’ used for a ‘gourmet hot dog’ cart in Copenhagen. The lawsuit was addressed at another Copenhagen restaurant choosing to use the name ‘Keyser Social’. For the attentive reader, both parties were obviously inspired by the character Keyser Söze when choosing the names for their respective businesses.

The court held that, on the one hand, the first part of the two names ‘Kejser’ and ‘Keyser’ had significant visual similarities despite the differences from the use of ‘j’ and ‘y’, respectively. On the other hand, the court found that the second parts ‘Sausage’ and ‘Social’ were significantly different from each other and without any conceivable connection. In conclusion, the court found no risk of confusion. Put differently, ‘Keyser Social’ did not infringe the rights in ‘Kejser Sausage’.

The obvious and mutual inspiration behind the two names did not shake the hands of the court. In the decision, the court concisely noted that the character Keyser Söze from the The Usual Suspects had inspired both parties. However, the court did not find that this mutual inspiration from the same film character was leaving an immediate and clearly recognizable imprint in the names. Does this elusive role ring a bell from the movie? We are not completely convinced of this part of the grounds and the decision gives rise to some considerations regarding IP and fictional characters and names.

The usual suspect

The protection of Keyser Söze, if any?

As mentioned, Keyser Söze is the main character in The Usual Suspects.

With regard to trade mark law it is possible to register the names of fictional characters as trade marks. Well-known examples are ASTERIX, HARRY POTTER, INDIANA JONES, JAMES BOND and PIPPI LONGSTOCKING, typically registered by the film producers or the publishers behind the said characters.

Furthermore, copyright protection is in general available to fictional characters provided that the requirement of originality is met. The examples are legion, e.g. Batman and Mickey Mouse. The idea/expression dichotomy is decisive in this regard and fictional characters with a visual appearance are immediately meeting the requirement of originality where fictional characters that is only literary described are more challenged. Keyser Söze clearly belongs to the latter group. For a deeper analysis, see Eleonora Rosati’s Katpost here.

Applying this to the assessment of copyright protection of the character Keyser Söze as only literary described through the dialogue between the actors and never visually appearing in the movie, it is tempting to argue that the Keyser Söze character is merely an idea rather than an expression and thus not a copyright-protected character. This is also supported by the fact that the name Keyser Söze subsequently – in pop-culture – has become a general expression for a feared figure that no one has ever met.

This position is perhaps supported by the decision from the Ninth Circuit Court of Appeals described and analyzed by Thomas Key on this blog here. The court ruled that the characters in the TV series ‘The Moodsters’ were not subject to copyright protection. The Moodsters were five colour-coded characters who represented five different emotions made for children. The case was brought against The Walt Disney Company, alleging that the movie Inside Out infringed The Moodsters-creator Denise Daniels’ copyright. The Inside Out movie had five characters representing five different emotions. Before Disney released the movie in 2015, Daniels had pitched the characters from The Moodsters for Disney on several occasions and for the first time back in 2005. The court dismissed the copyright claim on the grounds that The Moodsters characters did not qualify for copyright protection. The court argued that the work of creative expression constituted an idea rather than a protectable work. The concept of various colours representing particular emotions failed copyright protection due to the lack of originality and distinctiveness.

Comment

The clear inspiration from Keyser Söze did not have a decisive impact on the two battling trade marks ‘Kejser Sausage’ and ‘Keyser Social’, even despite the fact that it naturally caused obvious similarities between the two trade marks. We can only conclude that Keyser Söze was once again able to elude the courts.