See Martha Elizabeth, Inc. v. Scripps Network Interactive, LLC (W.D. Mich. May 9), though you can think of it as Bitchen Kitchen v. Bitchin’ Kitchen — a trademark case, naturally, with First Amendment overtones:
On balance, then, if the court considered only the Frisch likelihood-of-confusion factors, it would be inclined to find that the plaintiffs [who market “Bitchen Kitchen” products] are likely to succeed in showing likely confusion, and likely to succeed overall on the merits of their two federal trademark claims against B360. The Scripps Defendants, however, marshal a colorable argument that … to enjoin them from running B360’s Bitchin’ Kitchen show on its Cooking Channel because of its title would impermissibly impair their First Amendment freedom of speech….
On the whole, at this early stage of the case, the court cannot justify running that risk [of suppressing ideas] by issuing the extraordinary remedy of preliminary injunctive relief against the Scripps Defendants. See Westchester Media, 214 F.3d at 672 (holding that publisher of Polo magazine was liable for infringement of Ralph Lauren’s Polo mark, but also holding that the district court erred in enjoining the publisher to cease publishing the magazine with that title). Such relief is amply justified against B360, however, as to all conduct other than the title of its TV series.
What would Leonard Cohen say?