I suppose they were going to have to push their luck too far sooner or later. The Asylum, the low-budget film studio behind such classics as Abraham Lincoln Vs. Zombies, Paranormal Entity, Transmorphers and Almighty Thor, have run into a lawsuit that they can't duck out of with their "historical drama" Age of the Hobbits.
As a studio that predominantly trades in "mockbusters" – shamelessly transparent rip-offs of whatever big movie is about to hit cinemas – this isn't the first time that The Asylum have had to fend off copyright issues. Another of their recent releases, American Warships, was originally titled American Battleship until Universal began making frowny faces at them.
We reported back in October that Warner Bros. were planning to take The Asylum to court over Age of the Hobbits, and that the latter studio were planning to base their defence upon the claim that their hobbits are nothing to do with Tolkien's hobbits.
Age of the Hobbits is about the real-life human subspecies, Homo Floresiensis, discovered in 2003 in Indonesia which have been uniformly referred to as 'Hobbits' in the scientific community. As such, the use of the term 'Hobbits' is protected under the legal doctrines of nominal and traditional fair use. Indeed, a simple Google search of Hobbits and archaeology reveals dozens of articles containing the term "Hobbit(s)" in the title.
A cheekily charming, though not very solid, response. Unfortunately for The Asylum, the California federal judge Philip Gutierrez was not particularly amused by this defence, pointing out that the word "hobbit" is a registered trademark, that there are a number of similarities between the marketing material for Age of the Hobbits and New Line's The Hobbit trilogy, and that the title of The Asylum's film is explicitly misleading.
According to the ruling published by The Hollywood Reporter, Gutierrez had this to say in response to The Asylum's 'Homo Floresiensis' defence:
Asylum's argument appears to ignore the connection between the term used to describe Homo Floresiensis and Tolkien's hobbits. Asylum treats the use of the two terms as completely unrelated, but the terms are in fact closely related: scientists gave Homo Floresiensis the nickname 'Hobbit' because its appearance resembled Tolkien's hobbits, as described in his novels … Given that Homo Floresiensis received the nickname 'Hobbit' specifically because of its resemblance to Tolkien's fictional hobbits, the Court finds Asylum's argument that its movie is wholly unrelated to Tolkien's work because it is about Homo Floresiensis to be disingenuous.
The majority of factors weigh in favor of a finding of likelihood of confusion and no factor weighs against such a finding. Moreover, the finding is particularly strong on the three factors that courts have found to be the most important, especially in the context of the internet: similarity of the marks, relatedness of the goods, and use of similar marketing channels.
Gutierrez has placed a temporary restraining order upon The Asylum to prevent them from releasing the film. There will be a court hearing on January 28th to decide whether the restraining order will be made permanent.
I've never seen so much trouble over such a silly word.
Here's the trailer for one of the hobbit films, anyway.