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Keywords

tortplaintiffappealtrialtrademarkcommon law
tortplaintiffdefendantdamagestrialpleatrademarkcommon law

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Hirsch v. S.C. Johnson & Son, Inc., 90 Wis.2d 379, 280 N.W.2d 129, 205 U.S.P.Q. 920

Facts

Elroy Hirsch, a well-known sports figure, brought an action against S. C. Johnson & Son, Inc. for the unauthorized use of his nickname 'Crazylegs' on a women's shaving gel. The manufacturer admitted knowledge of Hirsch's nickname and its use on the product but claimed that the name was not exclusively associated with him. The Circuit Court dismissed the case, leading to Hirsch's appeal. The Supreme Court of Wisconsin ultimately reversed the dismissal, recognizing a cause of action for appropriation of a person's name for commercial use under Wisconsin common law.

Elroy Hirsch, the plaintiff, seeks damages for the unauthorized use of his nickname, 'Crazylegs,' on a shaving gel manufactured by the defendant, S. C. Johnson & Son, Inc. Johnson admitted in its answer that it knew that Hirsch is nicknamed 'Crazylegs' and admitted that it marketed a product, a moisturizing shaving gel for women, under the name of 'Crazylegs.'

Issue

Whether a cause of action for appropriation of a person's name for commercial use exists under Wisconsin common law, and whether the plaintiff established a prima facie case of common law trademark or tradename infringement.

Whether a cause of action for appropriation of a person's name for commercial use exists under Wisconsin common law, and whether the plaintiff established a prima facie case of common law trademark or tradename infringement.

Rule

The court held that a cause of action for the appropriation of a person's name for commercial use exists as a matter of Wisconsin common law. Under trade name law, it is sufficient for a plaintiff to allege and prove that their nickname designates their vocation or occupation and that its unauthorized use creates a likelihood of confusion regarding sponsorship, without needing to show prior marketing of a product under that name.

Right of a person to be compensated for the use of his name for advertising purposes or purposes of trade is distinct from other privacy torts, which protect primarily the mental interest in being let alone, since it protects primarily property interest in publicity value of one's name, and thus cause of action for appropriation of person's name for commercial use exists as matter of Wisconsin common law despite prior decisions rejecting common-law right of privacy.

Analysis

The court analyzed the facts presented by Hirsch, noting that he provided sufficient evidence to demonstrate that 'Crazylegs' identified him and that its use on the shaving gel created confusion regarding sponsorship. The court emphasized that the appropriation tort protects property rights in the publicity value of one's name, distinguishing it from other privacy torts that primarily protect mental interests. The court found that the trial court had erred in dismissing the case without allowing the jury to consider the evidence.

The appropriation cause of action protects not merely the right to be let alone but, rather, protects primarily the property rights in the publicity value of aspects of a person's identity. The court concluded that the plaintiff's pleadings and proof were sufficient to state a cause of action upon which relief can be granted under both theories.

Conclusion

The Supreme Court of Wisconsin reversed the lower court's dismissal and remanded the case for a new trial, affirming that Hirsch had a valid cause of action for the unauthorized use of his nickname.

We therefore reverse and remand the cause for a new trial.

Who won?

Elroy Hirsch prevailed in this case as the Supreme Court of Wisconsin recognized his right to bring a cause of action for the unauthorized use of his nickname 'Crazylegs.' The court found that Hirsch had presented sufficient evidence to support his claims, and the dismissal by the lower court was deemed inappropriate. The ruling underscored the importance of protecting the property rights associated with a person's identity and the potential for confusion in commercial contexts.

The court found that the plaintiff presented sufficient credible evidence upon which a jury could find, as a matter of fact, that the name, 'Crazylegs,' identified Hirsch and that the use of that name had a commercial value to Johnson.

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