The District Court correctly determined that Phoenix failed to state a trademark claim because Basket Case’s activities cannot have caused any relevant confusion.1 Phoenix’s fundamental complaint is about unauthorized use of its intangible content—karaoke tracks. Under Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), however, only confusion regarding the source of physical goods is actionable under the Lanham Act; confusion regarding the source of the karaoke tracks or their authorization is not actionable. Phoenix cannot avoid Dastar just because Basket Case creates digital copies of those tracks, as Basket Case does not sell digital files or any other physical product bearing the SOUND CHOICE mark. Indeed, the only way consumers ever encounter Phoenix’s marks is during playback of the karaoke tracks, so any “confusion” could only be the result of the content itself. Dastar clearly precludes such a claim.
Nor can Phoenix avoid Dastar by pointing to other commercial services offered by Basket Case, such as its sale of food and beverages. Basket Case does not use the Sound Choice mark to designate any such services, and source indication cannot be inferred from the use of Phoenix’s marks within the karaoke tracks. Finally, Phoenix’s marks cannot be separated from the content. Phoenix chose to embed its marks in creative works, and Dastar teaches that control over creative works is the province of copyright law, not the Lanham Act. Accepting Phoenix’s argument would open the door to exactly the kind of “mutant copyright” rejected by the Supreme Court.
Brief of Amici Curiae Intellectual Property Law Professors in Support of Appellees, Phoenix Entm’t v. Rumsey, No. 15-2844 (7th Cir. Nov. 30, 2015).