## Facts

- Warner Bros. produced *The Dukes of Hazzard*, which prominently featured the “General Lee,” an orange 1969 Dodge Charger marked with a Confederate flag on the roof and “01” on the doors.
- Warner claimed these visual elements were distinctive, nonfunctional identifiers associated with the show and Warner’s merchandising authorization.
- Gay Toys sought, but did not obtain, a license to make a “General Lee” toy car.
- Gay Toys nonetheless sold an orange Dodge Charger toy called the “Dixie Racer,” bearing a Confederate flag and the number “10” on the doors; some customers altered the number to “01.”
- Warner presented evidence that many children believed the “Dixie Racer” was the “General Lee” and that retailers marketed it as “The Dukes of Hazzard Car.”
- Warner sued under Lanham Act § 43(a) and New York unfair competition theories and moved for a preliminary injunction.
- The district court denied preliminary relief, reasoning confusion was unlikely because Warner did not manufacture toy cars.

## Issues

1. Whether Lanham Act § 43(a) protects unregistered marks, including distinctive symbols associated with a television series component such as the “General Lee.”
2. Whether a plaintiff may obtain preliminary injunctive relief under § 43(a) by showing likely confusion as to source or sponsorship, even if the plaintiff is not the physical manufacturer in the defendant’s product market.
3. Whether the record supported a likelihood of confusion as to source or sponsorship arising from Gay Toys’ use of the General Lee’s distinctive visual elements.

## Decision

- The Second Circuit reversed the denial of a preliminary injunction and remanded with instructions to enter a preliminary injunction for Warner.
- The court held § 43(a) protects unregistered marks and extends to symbols the public associates with a plaintiff or its product, including symbols identifying a component of a successful television series.
- The court held that for § 43(a) injunctive relief, the required showing is a likelihood of confusion as to source or sponsorship, not proof that the plaintiff manufactures the defendant’s goods.
- The court concluded Gay Toys’ use of the General Lee-like symbols created a likelihood of confusion as to Warner’s source, authorization, or sponsorship of the toy.

## Legal Principles

- Lanham Act § 43(a) provides protection for unregistered trademarks and other distinctive, source-identifying indicia used in commerce.
- Protectable indicia under § 43(a) may include nonfunctional design elements and symbols that the public associates with a plaintiff, including symbols tied to identifiable elements of a television series.
- A § 43(a) claim may be established by showing a likelihood of consumer confusion as to source or sponsorship; the plaintiff need not be the physical manufacturer of the challenged goods.
- Evidence that consumers and retailers treat a defendant’s product as an authorized version of the plaintiff-associated item supports likelihood of confusion for preliminary injunctive relief.

## Conclusion

The Second Circuit ordered preliminary injunctive relief because § 43(a) can protect unregistered, nonfunctional symbols associated with a television series, and Warner showed likely consumer confusion that Gay Toys’ “Dixie Racer” was authorized or sponsored by Warner even though Warner did not manufacture toy cars.


Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76 (2d Cir. 1981)