Use of name permitted: Mythbusters

In Knight v Beyond Properties Pty Ltd [2007] FCAFC 170 the Full Court of the Federal Court of Australia rejected an appeal by Mr Knight from the Court's dismissal of his claim that Beyond Properties breached the Trade Practices Act 1974 (Cth) and engaged in the tort of passing off by publishing its Mythbusters television programs and spin-off books. Knight earlier wrote (using a nom de plume) 3 books about a group of persons who investigate paranormal or supernatural phenomena, using the name of ‘Mythbusters’.

The central issue for determination in thes appeal was whether the use of the name ‘Mythbusters’ in the Mythbusters TV Show was likely to wrongly suggest to the mind of a reasonable television viewer that the show was associated in some way with Mr Knight’s Mythbusters Books (and other associated activities, such as interviews and plans to develop a television show of his own) when in fact, as is acknowledged by both parties, there was never any such association. Determination of this issue involved a consideration whether Mr Knight’s reputation in relation to the name was sufficient to provide a reasonable basis for such an assumption of association.

The trial judge concluded as a question of fact that the development and adoption of the name had nothing to do with Mr Knight or any of his ideas, and that it was a belated choice because "it was a catchy term descriptive of the activities portrayed by the Mythbusters TV show".His Honour analysed the material supplied by Mr Knight, including material which his Honour held was not received by Beyond, and found no similarity between the content of Mr Knight’s Mythbusters Books and other materials and the content of the Mythbusters TV Show.

The Full Court agreed that Mr Knight failed to prove a sufficient connection between the Mythbusters TV Show and his books: "any reputation vested in Mr Knight’s Mythbusters Books, quite apart from being limited to a narrow class of television broadcasters and executives, was not sufficiently widespread to create an association in the mind of the ordinary television viewing public with the Mythbusters TV Show when that show entered the public arena in late 2004."

we are of the view that the term ‘Mythbusters’ describes, in general terms, the breaking of beliefs or understandings wrongly held in relation to a certain topic or proposition, and is therefore in a broad sense descriptive.  It is, however, also true that when one looks at the Mythbusters TV Show, the type of myths it addresses, the personalities of the presenters, the format of the show, the script, and the methods used are not described by the term ‘Mythbusters’, and to this extent the term is not descriptive.  His Honour so concluded, and he used the expression "to an extent at least" at... to indicate that the name ‘Mythbusters’ was only broadly descriptive of the process of "busting" myths, and did not describe the detailed content of the program with any specificity.