Help, I’ve fallen and I can’t get up

Life Alert Emergency Response, Inc. v. LifeWatch, Inc., No. 14-55930 (9th Cir. Feb. 4, 2015). 

Life Alert has trademarked its famous slogan, “Help, I’ve fallen and I can’t up.” But it learned that telemarketers for LifeWatch, a competitor in the medical alert business, were using that slogan in their calls. Life Alert sued for trademark infringement under the Lanham Act, and the district court entered a preliminary injunction. This injunction prohibits LifeWatch not only from using Life Alert’s trademarks, but also from working with anyone (including telemarketers) that LifeWatch knows or should know is using Life Alert’s trademarks.

LifeWatch appeals. It argues that it simply lacks the capacity to monitor and control its telemarketers. This means that LifeWatch isn’t liable for trademark infringement and isn’t the proper subject of the injunction. 

The Ninth Circuit rejects this argument and affirms the district court. There’s plenty of evidence that LifeWatch knew that telemarketers were using Life Alert’s trademarks and did nothing to stop them—even though it has the right to cancel contracts with telemarketers who violate trademark law. Or to put it differently, LifeWatch isn’t an incapacitated senior citizen. It’s a soccer player falling and pretending to be hurt.