By Erin Geiger Smith

Feb 21 (Reuters) - The 7th Circuit U.S. Court of Appeals said Thursday that the title of the movie "50/50" did not cause confusion with rap duo Phifty-50's trademark.

Eastland Music Group, LLC, the proprietor of Phifty-50, sued Lionsgate Entertainment Inc, the producer of a film about a young man's battle with cancer, in November 2011, saying the movie company had infringed its rights by using 50/50 in the film's title.

Eastland, the opinion said, also claims a trademark for the phrase "50/50."

In a five-page opinion, Chief Judge Frank Easterbrook and Judges Joel Flaum and Iliana Rovner sided with Pryor Cashman client Lionsgate and upheld the Chicago federal district court's July 2012 decision to throw out the lawsuit.

U.S. District Judge George Lindberg's decision had followed the logic of the 2nd U.S. Circuit Court of Appeals in the 1989 case Rogers v. Grimaldi, which said that the title of an artistic work infringes a trademark only if it is devoid of artistic significance or is explicitly misleading about the work's source.

Lindberg ruled that the title "50/50" had artistic relevance to the plot of the film in that it referenced the main character's chance of survival.

The appeals court agreed, though it said it didn't need to go so far as to decide whether to follow Rogers, which has not yet been adopted by the 7th Circuit.

Instead, Easterbrook wrote for the panel, the "complaint fails at the threshold: it does not allege that the use of '50/50' as a title caused any confusion about the film's source."

Just like no moviegoer would have thought the jeweler Tiffany & Co was the source for the film 'Breakfast at Tiffany's,' no consumer would think the rap group was the source of the film '50/50,' the judge wrote.

ROGERS V. GRIMALDI RECAP

The court also pointed to at least eight other films with 50/50 or a variant in the title, noting that if there is "any prospect of intellectual property in the phrase 50/50," Eastland is a "very junior user and in no position to complain."

Ronald diCerbo of McAndrews, Held & Malloy who represented Eastland was not immediately available to comment.

Lionsgate's team was led by Pryor Cashman partner Tom Ferber. He said that he knew the appeals court might want to avoid the constitutional discussion required to follow Rogers.

He also argued to the court that the term "50/50" was one in parlance before the rap duo ever existed and that Eastland Music's trademark allegations were therefore not supportable.

The bottom line, Ferber said, is that Lionsgate wasn't "using a trademark, we were using a term that pre-existed the plaintiffs."

Ferber, as it happens, was also on the winning team that represented defendant MGM/UA Entertainment Co against the claims brought by Ginger Rogers over the Federico Fellini film "Ginger & Fred" that served as the basis of the Grimaldi case. At the time, he said, he was an associate and handled the majority of the briefing.

That lawsuit, Ferber said, "was arguably one of the biggest cases I've ever been involved in."

The film "50/50" featured the somewhat more modern stars Joseph Gordon-Levitt and Seth Rogen.

The case is Eastland Music Group v. Lionsgate Entertainment, U.S. Court of Appeals for the 7th Circuit, No. 12-2928.

For Eastland: Ronald diCerbo of McAndrews, Held & Malloy

For Lionsgate: Tom Ferber of Pryor Cashman.

(This article has been corrected. The previous version misspelled Pryor Cashman in paragraph 12 and incorrectly referred to Easterbrook's instead of Eastland Music's trademark allegations in paragraph 13.)

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