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Keywords

plaintiffdefendantdamagestrademarkpunitive damages

defendanttrademark

Related Cases

Burck v. Mars, Inc., 571 F.Supp.2d 446, 88 U.S.P.Q.2d 1942

Facts

Robert Burck, known as The Naked Cowboy, is a street performer in New York City who has trademarked his persona. He alleges that Mars, Inc. and its advertising agency, Chute Gerdeman, created an animated advertisement featuring a blue M&M dressed like him without his permission. Burck claims this use infringes on his right to privacy under New York law and constitutes trademark infringement under federal law. He seeks compensatory and punitive damages for the unauthorized use of his likeness.

Issue

Did the defendants violate Burck's right to privacy under New York law and infringe his trademarks by using a character resembling him in their advertisements?

Rule

Under New York law, to establish a violation of the right of privacy, a plaintiff must show that the defendant used their name, portrait, picture, or voice for advertising purposes without consent. The Lanham Act provides a cause of action for false endorsement, requiring proof that the defendant made a false or misleading representation in commerce that is likely to cause confusion regarding the origin or endorsement of goods.

Analysis

The court found that the defendants did not use Burck's actual portrait or picture, as the M&M character was not a recognizable likeness of him. However, the allegation that the character implied Burck's endorsement of the product was sufficient to state a claim for false endorsement under the Lanham Act. The court also noted that the defenses of parody and fair use raised by the defendants were not to be struck at this stage, as they presented factual issues.

Conclusion

The court dismissed Burck's right of privacy claim but allowed his false endorsement claim to proceed, concluding that consumers might mistakenly believe he endorsed the M&M product.

Who won?

The court ruled in favor of Burck regarding his false endorsement claim, allowing it to proceed while dismissing his right of privacy claim. This outcome indicates that while the defendants did not violate privacy laws, the potential for consumer confusion regarding endorsement was significant enough to warrant further examination.

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