Netflix is being forced to entertain discussions with the notorious drug cartel family. It is currently party to an on-going legal battle, led the brother of Pablo Escobar, whose life was dramatized for Netflix’s most popular TV series ‘Narcos.’ ‘Escobar Inc’ – an investment holding company, has put forward a claim for trade mark infringement.

Alongside this, Carlos Munoz Portal – a scout for the production company was shot dead in Mexico whilst locating places to film the next season. Whilst many speculate a connection with the dispute, no evidence has been found to suggest one exists. Yet, Roberto De Jesus Escobar Gaviria (the brother of Pablo) has made no effort to disparage assumptions – he has in fact encouraged them. In an interview he stated:

“I don’t want Netflix or any other film production company to film any movies in Medellin or Colombia that relates to me or my brother Pablo without authorization from Escobar Inc. It is very dangerous. Especially without our blessing.”

He has requested a settlement of $1 billion.

Saddened by the potential end to Narcos, I wondered about the legitimacy of these claims. Threats of violence aside, would requests of compensation and the right to be asked permission be considered reasonable in a court of law? The question came down to – Is there a registered trade mark?

The answer was yes. Over the last year or so Escobar Inc has made applications to register many – ‘ESCOBAR’ and ’NARCOS’ included. Filing these with the USPTO (United States Patent and Trade Mark Office), has given Escobar’s family the opportunity to argue for a legitimate pay out; and / or power to end the much loved show. Netflix has disputed the trade marks with a cease and desist letter – however, with the added fear of death, the likely outcome of discussions remains uncertain.

Legal background

Why did Escobar’s family choose trade mark infringement? From a UK law perspective –

  1. Life story rights are a myth – There is no legal basis in English law for asserting these rights. Not in copyright, or any other Intellectual Property Law. As long as sources of information were lawful, you are allowed to profit from telling someone story.
  2. Freedom of expression – There is no codified regime for the invasion of privacy. Our laws must be in accordance with the European Convention of Human Rights – and with that, the right to respect of his private and family life (Article 8) will be balanced against freedom of expression (Article 10).
  3. You cannot defame the dead – While the risk of defamation claims is often a burden for producers, expressions must be proven false and considered harmful to the reputation of the claimant. Actions can also only be brought by the individual – the dead cannot currently be defamed under English law. If you are sharing a story which doesn’t belong to you – whether through a book, song, film, or any other creative work – it may be worthwhile to consider:

Advice

  1. Asking permission – In some scenarios, this can be a great idea. While the owner has no legal rights in their story, approaching them beforehand is a great opportunity to start an amicable relationship and avoid unexpected litigation. An agreement can be drafted which allows both parties to set out their terms, and ascertain their legal position. It could also create the opportunity to access additional information, historical records and exclusive interviews.
  2. Registering a trademark – Trade marks are advisable for the majority of creatives and entrepreneurs. Rights over a name or logo can be very useful; and should be secured as soon as possible. Remedies of a successful claim include: injunctive relief; damages; restitution of unjust enrichment; measures for recovery of reputation and even criminal prosecution.

If you would like a commercial agreement drafted, a trade mark registered, or advice on any Commercial or Intellectual Property related matter, contact Briffa.

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