Warren Miller Entertainment sues Level 1 Productions for 'Refresh' ski film

  Warren Miller's personal involvement in the ski film "Refresh"
  from Level 1 Productions has led to a lawsuit from
  Warren Miller Entertainment.                          Photo: Level 1

Warren Miller Entertainment (WME) filed a trademark infringement complaint Monday in the U.S. District Court of Colorado against Level 1 Productions for the use of Warren Miller in the ski movie “Refresh.” Appearing in the new film from Level 1, the 84-year-old Miller is considered a legendary pioneer in the ski filmmaking industry, but he sold his business and use of his name in 1988 to International Entertainment Group, the predecessor to WME.

Temporary restraining order denied

“Refresh” premiered in Denver on Sept. 11 and was shown at the International Freeski Film Festival in Montreal on Sept. 18. Along with the trademark complaint, WME also entered a motion Monday for a temporary restraining order to prevent more showings of the film. Judge Marcia Krieger denied the motion a day later on Tuesday, the day before a screening scheduled for Wednesday, Sept. 23 in Boulder, Colo.

Acting in place of Judge Christine Arguello, who was assigned to the main case but was busy with other hearings, Krieger wrote in her decision, “the Defendant apparently secured Mr. Miller’s agreement to appear in 'Refresh,' and should be entitled to identify him to the public and advise the public that Mr. Miller does, in fact, appear in the film.

“According to the Complaint, every instance in which the Defendant used the 'WARREN MILLER' mark involved either Mr. Miller personally identifying himself or the Defendants making reference to Mr. Miller as a participant in the film,” Krieger added. “These uses of Mr. Miller’s name are entirely consonant with the public’s interest in being able to truthfully identify a specific person.” Krieger also scolded the plaintiff for the late timing of the motion. She questioned if sufficient time was given to Level 1 for a response or possible resolution to WME’s concerns before the matter was taken to court.

WME cites agreement with Miller

A 1995 agreement between WME and Miller submitted to the court states that “WME owns the exclusive right, in perpetuity, in all media, to the name, the personal endorsement, use of voice, and the likeness of Warren Miller, when used with its existing business, and the fruits of its related efforts.”

Miller’s narration and on-camera work in “Refresh” could be a matter of dispute in regards to this contract, but WME is suing Level 1, not Miller himself. Krieger remarked on this issue in her decision, “Whether Mr. Miller’s participation in and endorsement of 'Refresh' breaches his exclusive licensing agreement with the Plaintiff is a question that does not appear to be presented in this case.”

WME owns “Warren Miller” trademark

WME argues in its complaint that it holds the U.S. trademark registration for the “Warren Miller” name. WME claims that it derives significant commercial advantages in the ski film arena from the exclusive rights to the well-known name. According to WME in the complaint, the use and promotion of Miller’s name by a competing ski-film producer, Level 1, are “likely to cause confusion, or to cause mistake, or to deceive consumers or potential consumers wishing to purchase WME’s products."

Montreal crowd chants 'Warren, Warren'

An affidavit submitted to the court from Marie-Claude Drouin, an audience member for the Montreal screening, claims that the theater crowd chanted “Warren, Warren” at the beginning of the film. The affidavit also details the specific appearances of Miller and his name in the film.

Request calls for monetary damages, halt to film showings

The complaint objects to use of Miller’s name in promotion of the film. WME submitted examples from the Level 1 website and even “tweets” from the Level 1 Twitter account. Level 1 has now placed a disclaimer on its website, “Level 1, Refresh, and the Boulder premiere of Refresh have no relationship with, partnership with, or represent no claims to be associated with Warren Miller Entertainment Group.”

In response to the filing on Monday, Level 1 posted on Twitter, “Looking for a good Intellectual Property Attorney in the Denver area... someone, anyone?”

Along with an end to any promotion involving Miller’s name, WME wants any material including him to be removed from the film before it can be shown again. WME is also asking for trademark infringement monetary damages and attorney’s fees.

On or before Oct. 5, counsel for the parties must contact Arguello to schedule the hearing of the case. WME is owned by Bonnier Corporation, also the parent company of Ski and Skiing magazines. Level 1 is a Colorado-based limited liability company founded by Josh Berman.

Level 1 calls legal action 'disappointing'

In a statement sent by e-mail Wednesday, Berman wrote, "Level 1's interview and subsequent inclusion of Warren Miller in our new film, 'Refresh,' was motivated by our desire to create a meaningful film that helped to bridge the generation gap and do something good for the sport of skiing. Level 1 has never, nor will ever, have any intention or desire to deceive our audiences into thinking that our films are in any way related to Warren Miller Entertainment, or further, that we are trying to capitalize on the brand and image created and purveyed by Warren Miller Entertainment.

"To the contrary, we have always gone out of our way to promote the Level 1 brand and our films, as entirely unique within the skiing community," Berman added. "It's disappointing that Warren Miller Entertainment would seek to put a stop to something that in all reality should serve to increase the reach and scope of the Warren Miller name, and in turn, the value of their own brand and films. We're very pleased by the judge's denial of Warren Miller Entertainment's motion for a temporary restraining order."

WME releases official statement on case

In an official comment dated on Wednesday, WME remarked on the pending case. "Beginning with the pioneering work of ski and film icon Warren Miller, and for the last 20 years under WME's stewardship, WME has invested significant resources in the development and preservation of the Warren Miller brand," the written release stated. "The careful and creative use of that brand, and the annual Warren Miller ski films that form the centerpiece of WME's business, have played an integral role in establishing and defining the ski film industry. Under the trademark laws, but even more critically under a common sense of fairness, WME believes it imperative to retain control of the use of the Warren Miller brand.

"WME will continue its longstanding support of the ski film industry and its affinity with the community of outdoor enthusiasts, and assures its fans and followers that the regrettably necessary legal steps taken will not adversely affect WME’s support of, and collaboration with, independent film companies and filmmakers," the statement concluded.

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Refresh trailer by Level 1 Productions