Monday, October 29, 2012 12:44 PM PT
'Winchester House' Film
Doesn't Hurt Real Thing

     (CN) - A film company that named its movie "The Haunting of Winchester House" did not damage a similarly named tourist attraction, a California appeals court ruled.
     William Winchester died in 1881 and left his wife, Sarah, an interest in his rifle company. Legend has it that a psychic medium told Sarah that the spirits of those killed by Winchester rifles had cursed her family.
     Following the psychic's advice, Sarah moved to San Jose, Calif., and built a 160-room Victorian mansion called Llanda Villa. The home was under round-the-clock construction for 38 years until Sarah's death in 1922.
     John and Mayme Brown later bought the house and turned it into a museum. Future generations formed Winchester Mystery House LLC, trademarking those words and the architectural design.
     In 2009, Winchester Mystery House struck a deal with Imagination Design Works to film they would collaborate on a film produced by Andrew Trapani, the director of "The Haunting in Connecticut."
     When Global Asylum Inc. then inquired about shooting a film there as well, contacted the Winchester Mystery House responded with a letter indicating that Global Asylum was a little bit too late.
     After announcing the production of its movie with Trapani, Winchester learned that Global Asylum had announced that it was producing a movie called "Haunting of Winchester House."
     Winchester obtained a copy of Global's movie, which had a DVD cover depicting a Victorian mansion and touting the "terrifying true story" of "160-room mansion" that "deserves its reputation as one of the most haunted places in America."
     Sarah Winchester is one of the ghost characters in the movie, along with an adolescent daughter and deaf brother, neither of which the real Sarah had.
     Winchester Mystery House LLC sued Global Asylum for trademark infringement and unfair competition.
     The trial court sided with Global at summary judgment, and the San Jose-based Sixth Appellate District affirmed Wednesday.
     Ultimately, Winchester Mystery House failed the Rogers test, named for Rogers v. Grimaldi, a 1989 case involving Ginger Rogers.
     The iconic dancer had sued to stop a movie called "Ginger and Fred," which was not a biography of her and partner Fred Astaire, but the 9th Circuit found that the First Amendment rights of filmmakers outweighed Rogers' publicity rights.
     In the same vein, Global Asylum used the Winchester house as a "crass marketing tool," rather than something integral to the story, according to the ruling.
     "As Rogers recognized, the artistic and commercial elements of titles are inextricably intertwined," Justice Nathan Mihara wrote for a three-member panel. "That defendant based its film on a true story to generate interest does not mean that the title and the cover of the DVD were not artistically relevant to the underlying film."
     Mihara also determined that the cease-and-desist letters that Winchester Mystery House sent to Global were not specific enough to show that distribution of the film would interfere with Winchester's commercial relationships.