Tyler Perry Wins 'What Would Jesus Do' Trademark Battle

  by Eriq Gardner

His opponent at the Trademark Office was a reality TV star who registered first and claimed she had introduced him to the title of a proposed show. She still lost.

While not scripture of ecclesiastic precept, the United States Patent and Trademark Office has declared Tyler Perry to be the winner in a battle over "What Would Jesus Do."

The other contestant in this bout was Kimberly Kearney, who was once known as "Poprah" on the VH1 series, I Want to Work for Diddy.

In May 2008, Perry registered the mark in the category of entertainment services, mentioning in his filing live concerts, a TV program and motion pictures. He included a disclaimer that he wasn't attempting ownership on the exclusive right to use "Jesus" apart from "What Would Jesus Do."

However, months earlier, Kearney had already filed for that same mark for a reality television program.
When her "What Would Jesus Do" mark was then published for opposition two years later, Tyler Perry Studios stepped forward to cancel it. Although Kearney had included in her registration a print-out of a web page calling for auditions on her show, Perry's reps said that she wasn't really using the mark. Perry demanded that the Trademark Office declare her registration abandoned as it was blocking his own attempts to turf out "What Would Jesus Do."

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In subsequent papers at the Trademark Trial and Appeal Board, Kearney attempted to make the case that she first used the mark in November 2007, and during the initial stage of production, she "shared her television program and title with Tyler Perry Studios" and that "not many months after sharing this program and soliciting [Perry] for financial support of this program, [Perry] filed to register this mark; consequently, eventually resulting in this cancellation proceeding."
   
But that hardly mattered thanks to some trademark jujitsu on the part of Perry's attorneys.
They requested the admission of certain facts by Kearney -- that she admit she hadn't produced a television show in connection with "What Would Jesus Do," that she hadn't sold one, that she didn't intend to do so nor had taken any meetings for such a show.

"Because [Kearney] did not timely answer [Perry]'s Requests for Admission, the facts included are deemed admitted and are 'conclusively established,'" wrote administrative judges in an opinion cancelling Kearney's trademark that was handed down last month and has just been promulgated. "Despite Respondent’s denials in her answer to [Perry's] petition, the deemed admissions supersede those denials and we are bound by them."
    
The judges also note Kearney's claims that Perry stole her "What Would Jesus Do" idea, but says that even if it was enough to support use or be a defense of unclean hands, "these allegations are unsupported and we may not adduce any facts from them."

If Tyler Perry does something with "What Would Jesus Do" -- and as illustrated here, he's under some onus to actually use it in commerce lest he also abandon the mark -- this is the backstory behind it.