Attorneys for WWE and Fanatics responded in new court filings on Friday to musician Wesley Eisold’s lawsuit against them and Cody Rhodes (legal name, Cody Runnels). Eisold’s complaint alleges trademark infringement and breach of an earlier settlement with Rhodes.
The defendants’ motion to dismiss Eisold’s claims largely hinges on the notion that the WWE merchandise Eisold is suing over is accompanied by the Rhodes skull logo trademark.
Eisold, who now mainly publishes music under the name Cold Cave, co-founded the band American Nightmare in 1998. He made an agreement with Rhodes in 2021 allowing the wrestler to use the American Nightmare trademark, provided that Rhodes’ use of the mark in items such as apparel merchandise also included Rhodes’ name, likeness, or “substantial indicia indicating association with wrestling” if those wrestling elements are “75% or larger size as compared to” the American Nightmare mark.
Eisold filed the lawsuit in September, alleging that many items WWE sells on its Fanatics shop using the “American Nightmare” trademark violate the settlement Rhodes signed because the clothing doesn’t also use Rhodes’ name, likeness, or wrestling elements — which would aid in preventing confusion in the marketplace for consumers who may not distinguish the Rhodes merchandise from those related to the American Nightmare rock band.
“The Runnels clothes are brandished with the words ‘American Nightmare’ but do not include Runnels’ name, his name, likeness or indicia of wrestling (or do so in puny fashion),” Eisold’s attorneys stated in September, asserting that the merchandise sold by WWE fails to uphold the conditions of the settlement.
The defendants, however, argue that all of the apparel Eisold claims are infringing actually do meet the Eisold-Rhodes settlement because they include the skull logo that Rhodes also has tattooed on his neck. And because that logo, which is itself a trademark that Rhodes has registered for wrestling purposes, appears alongside “American Nightmare” text, therefore, they argue, the conditions of the settlement remain satisfied.
One might imagine Rhodes’ likeness being limited to depictions of the WWE champion’s face or whole body, but the defendants say the skull logo is actually a part of Rhodes’ likeness because it’s tattooed on Rhodes’ neck. Additionally, WWE and Fanatics contend, that the trademark, by virtue of its use for wrestling purposes, amounts to what the wrestler and musicians settlement called “substantial indicia indicating association with wrestling”.
“Runnels [Rhodes] has a prominent neck tattoo of the Skull Mark,” attorneys for WWE and Fanatics wrote, “which, by virtue of Runnels’ worldwide popularity, has become widely recognized as part of his ‘likeness’.”
“[C]onsumers have become accustomed to associating the Skull Mark, with not only wrestling, but with a single source, namely, Runnels,” the lawyers also stated.
Rhodes’ neck tattoo — met with at best mixed reactions when it first appeared on his body in early 2020 — might be a benefit to him after all.
The earlier agreement between Rhodes and Eisold, signed when Rhodes was with All Elite Wrestling, named the AEW logo as one example of wrestling indicia, but didn’t define other examples.
The motion from WWE and Fanatics also argues that the companies didn’t know the Rhodes-Eisold settlement existed until shortly just before Eisold filed his lawsuit, and that they didn’t see the contract itself until it was included in the complaint. WWE and Fanatics contend that they can’t be held liable for causing Rhodes to breach the contract, as Eisold alleges when they didn’t have knowledge that the contract existed.
Eisold uses the American Nightmare name in merchandise and the American Nightmare band is still occasionally active. They toured as recently as last year.
The lawsuit is being litigated in federal court in the Central District of California.
WWE and its merchandising partner Fanatics are represented by the same attorneys from the Holland & Knight firm. Rhodes has separate counsel from Jayaram Law and filed a joinder to the WWE and Fanatics motion, which indicates Rhodes supports the WWE and Fanatics legal arguments and is asking the judge to apply the same reasoning to Eisold’s claims against him.
Eisold is represented by lawyers from King, Holmes, Paterno & Soriano, LLP.
We contacted attorneys for each of WWE, Fanatics, Rhodes, and Eisold to allow them to provide comments for this story. We will update this article if they respond.
