Will Trademark Ruling Haunt Winchester Mystery House?

By Robyn Hagan Cain on October 25, 2012 | Last updated on March 21, 2019

It's unusual to find a case that combines both haunted houses and a trademark lawsuit. Whether frightful or delightful, we stumbled across such a case today.

In 1862, Sarah "Belle of New Haven" Pardee married William Wirt Winchester, of the famous Winchester repeating rifle family. The couple was the toast of New England society. In 1866, their infant daughter died, and Sarah fell into a deep depression. After William died in 1881, Sarah supposedly spoke with a medium who claimed that the Winchester family was being haunted by the victims of Winchester rifles.

The medium's solution was for Sarah to move west and build a great house for the spirits. As long as construction of the house continued, the medium claimed Sarah would be safe.

Sarah took the medium's advice, and began building a house in San Jose. Construction continued 24 hours a day, 7 days a week, 365 days a year for the next 38 years, and only stopped when she died in 1922. Today, the 160-room Victorian-style mansion is a tourist attraction and the subject of a trademark lawsuit.

Scary stuff, indeed.

People love haunted houses -- especially real haunted houses -- so it's no surprise that Sarah Winchester's construction obsession was eventually transformed into Winchester Mystery House, LLC, (WMH) a full-service "haunted" brand complete with a "Winchester Mystery House" word mark and an architectural mark that consists of the three-dimensional design of the Winchester mansion.

After defendant Global Asylum, Inc. released a film called Haunting of Winchester House without obtaining WMH permission to use the Winchester name, WMH sued for unauthorized use of its trademarks, unfair competition, and interference with contract and economic advantage. Though Global Asylum didn't actually use Winchester mansion images in the film, WMH alleged that images of the Victorian-style mansion in its film and corresponding promotions caused confusion in the minds of the public.

Global Asylum moved for summary judgment, which the trial court granted.

On appeal, WMH argued, among other things, that the trial court erred in its application of the Rogers v. Grimaldi two-part test.

The appellate court responded that Global Asylum satisfied the first prong of the Rogers test -- that the title pass "the appropriately low threshold of minimal artistic relevance" to the content of the film -- because both the title Haunting of Winchester House and the Victorian-style mansion on the DVD cover have some artistic relevance to the underlying work. The court also found that Global Asylum met the second Rogers prong because the title and the cover of the DVD did not "explicitly mislead as to the source or content of the work." There was no suggestion that the film was authorized, endorsed, or produced by WMH.

What do you think? Is this decision enough to scare the historically haunted house proprietors away from Lanham Act litigation, or will the spirit of this suit haunt the defendant all the way to the California Supreme Court?

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