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Oprah must face lawsuit over 'Own Your Power': appeals court

Media mogul Oprah Winfrey delivers the commencement address during Harvard University's 362nd Commencement Exercises in Cambridge, Massachus
Media mogul Oprah Winfrey delivers the commencement address during Harvard University's 362nd Commencement Exercises in Cambridge, Massachus

By Erin Geiger Smith

NEW YORK (Reuters) - Oprah Winfrey will have to defend in court her use of the phrase "Own Your Power" in her magazine and on her website, a U.S. appeals court said on Friday.

Overturning a lower court ruling, the 2nd Circuit U.S. Court of Appeals revived claims brought by Simone Kelly-Brown, owner of a motivational services business, Own Your Power Communications Inc, who says she owns a trademark on the phrase.

The case should go forward, the appeals court said, because it was possible Winfrey was "attempting to build a new segment of her media empire" around the phrase "Own Your Power."

The court said it was also possible information could come out during the case that would undermine that theory.

Winfrey and her company, Harpo Inc, have repeatedly used the phrase, including for a September 2010 "Own Your Power" promotional event and on the cover of the October 2010 issue of O, The Oprah Magazine, the opinion said.

Winfrey's continuous use of the phrase could become "symbolic shorthand" for her products and message as a whole, the court said.

Winfrey is one of the most popular talk-show hosts in history and now runs the cable network OWN in a joint venture with Discovery Communications Inc.

Hearst Corp, which publishes O, The Oprah Magazine, and Estee Lauder Companies Inc are defendants in the lawsuit along with Harpo. Estee Lauder was one of the corporate sponsors of the "Own Your Power" promotional event.

In a joint statement, Harpo and Hearst said the "editorial use" of the phrase at issue was protected by the First Amendment and that they would vigorously defend the lawsuit. Estee Lauder did not respond to a request for comment.

U.S. District Judge Paul Crotty of New York had dismissed the lawsuit in March 2012, finding that no one seeing the Oprah magazine or information about the related events would think they were created by Kelly-Brown.

In the lawsuit, Kelly-Brown claimed Winfrey would have known the "Own Your Power" trademark already existed due to searches that would have been done when her television network, OWN, was developed.

The appeals court agreed this was possible, and those issues will also now be reviewed by the lower court.

Patricia Lawrence-Kolaras, an attorney for Kelly-Brown, said her clients were "ecstatic" about the opinion.

Kelly-Brown had also claimed that an "Own Your Power" logo used at the promotional event was too similar to her own logo. The appeals court ruled, however, that the logos were different and Winfrey and her co-defendants will not have to face those claims.

Circuit Judge Robert Sack, who was on the appeals court panel, agreed with the ruling, but issued an additional statement.

He said Friday's decision should not be interpreted to mean that a publisher is always forbidden from using a trademarked term to describe its content, such as on a magazine cover or in a headline.

In this case, Sack wrote, it was Winfrey's repeated use of the phrase in an attempt to build an association with consumers that concerned the court.

The case is Kelly-Brown et al v. Oprah Winfrey, et al., U.S. Court of Appeals for the Second Circuit, No. 12-1207.

(Reporting by Erin Geiger Smith; Editing by Andrew Hay and David Brunnstrom)

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