Viacom defeats Flora-Bama bar's trademark claims over MTV's 'Floribama Shore'

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The ViacomCBS logo is displayed on the Nasdaq MarketSite in New York, December 5, 2019. REUTERS/Brendan McDermid

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  • Show's name entitled to extra protection as title of artistic work
  • Flora-Bama's confusion argument too weak to justify trial
  • Names used in different industries, no bad intentions

(Reuters) - ViacomCBS has escaped claims brought by the Pensacola, Florida beach bar Flora-Bama in Florida federal court that MTV's reality show "Floribama Shore" infringes its trademarks.

Though the bar's claims would have justified a trial in a normal trademark case, Viacom's mark was entitled to greater protection under the First Amendment as the title of an artistic work, U.S. District Judge Robert Hinkle in Panama City said in a ruling on Wednesday.

Viacom attorney Susan Kohlmann of Jenner & Block said in a statement she was "delighted" to help the company protect its brand.

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New York-based Viacom didn't respond to a request for comment; neither did the Flora-Bama or its attorneys Fred Perkins of Morrison Cohen and Joshua Harris and Troy Rafferty of Levin Papantonio Rafferty.

The Flora-Bama bar and concert venue opened in 1964 on the Gulf of Mexico, near the state line between Florida and Alabama. MTV's "Floribama Shore," a reality show about twenty-somethings in a Panama City Beach, Florida house, premiered in 2017 following the success of the network's "Jersey Shore."

Hinkle said in his Wednesday ruling that the term "Floribama" had never been used to refer to the Florida-Alabama border, and MTV's executives only found references to the bar while considering it for the show's name.

The Flora-Bama's owner MGFB Properties sued Viacom in 2019 for trademark infringement, arguing the show's similar name was an attempt to play on the bar's goodwill and likely to cause consumer confusion.

In its April motion for summary judgment, Viacom argued that the title of its show was protected from the claims by the First Amendment, and that it wasn't likely to cause confusion.

Hinkle said the issue was "close and not squarely controlled by prior decisions," but Flora-Bama's confusion arguments weren't strong enough to overcome the First Amendment's extra protection for artistic works.

"The plaintiffs' showing here, while not strong, would be sufficient to withstand summary judgment in an ordinary case — a case not involving a junior user's artistic expression," Hinkle said.

Hinkle rejected Flora-Bama's confusion argument largely because the two marks were used in different industries to market different services.

"An oyster bar, lounge, and concert venue, even with an occasional festival or song or show, is nothing like a national television series," Hinkle said.

And though the names themselves are similar, the trademarks are "not similar at all" in context, Hinkle said.

Hinkle also said that though MTV copied the Flora-Bama's name, Viacom offered the "convincing explanation" that it chose the name to describe the show's location, and there was no reason to believe MTV meant to "trade on the Flora-Bama's regional popularity" or "pirate the plaintiffs' goodwill."

"At bottom, most potential viewers in the national audience surely understand the title MTV Floribama Shore to denote another show in the Jersey Shore line," Hinkle said. "Most potential viewers are unlikely to believe MTV Floribama Shore is associated with the Flora-Bama, if they have heard of the Flora-Bama at all."

The case is MGFB Properties Inc v. ViacomCBS Inc, U.S. District Court for the Northern District of Florida, No. 5:19-cv-00257.

For Viacom: Susan Kohlmann of Jenner & Block

For Flora-Bama: Fred Perkins of Morrison Cohen, Joshua Harris and Troy Rafferty of Levin Papantonio Rafferty

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Viacom sued for trademark infringement over its 'Floribama Shore' TV show

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at