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I. REVIEW
II. MARKETING MGMT II Right of publicity Unfair trade practice
III. WRAP-UP
TRADEMARKS: CREATION
Inherently distinctive marks (OK) Fanciful Arbitrary Suggestive
Descriptive marks: (OK only if 2nd meaning)
Generic marks (Never)
TRADEMARKS: INFRINGEMENT
Lanham Act 43(a): Prohibits false designation of origin (= trademarks)
Likelihood of confusion claim 8 factors Injunction or $$$ Counterfeit criminal prosecution
CREATION OF COPYRIGHT
Requirements
Originality: Must have minimal originality Fixation: Must be put into tangible form
NBA v. Motorola
Sport game itself is not copyrightable But once recorded with labor, copyrightable
CREATION OF RIGHT
Common law right of famous individuals
From the concept of invasion of privacy Protects commercial value of celebrities’
persona
General rule: A celebrity’s name, likeness, or image cannot be used for commercial purpose without consent
ELEMENTS OF CLAIM (3)
Use of a famous person’s identity
Without consent
To gain a commercial advantage
WHITE V. SAMSUNG ELECTRONICS
Fact Samsung used a robot that resembles Vanna
White Dressed in a wig, gown & jewelry of P The robot was posed next to a Wheel-of-
Fortune-like game board
Rule Using a likeness of celebrity without consent
is a breach of ROP ROP extends to “anything that evokes her
personality (likeness)”
WHITE V. SAMSUNG ELECTRONICS
PUBLIC POLICY: PROTECTION V. LIMITS Why do we protect this right?
Hard work established their commercial value Unauthorized use directly hurts the value
Limits on right of publicity
1st Amendment right (artistic speech) Personal right or property? (inheritable?)
LIMITING THE RIGHT: 1st AM
ETW Corp. v. Jireh Publishing Inc. (2003)
Fact: A painting of TW’s memorable win at the 1997 Masters (sold thousands of copies) & ETW brought an action for breach of right of publicity
Rule: Under 1st AM, an artistic work with significant creative component is protected
Rationale: Literal depiction < expressive artistic speech
ETW CORP. V. JIREH PUBLISHING INC. (2003)
LIMITING THE RIGHT: RIGHT OR PROPERTY?
Pirone v. MacMillan, Inc.
Fact: One of Babe Ruth’s heirs sued calendar publisher for using the baseball legend’s pictures
Rule: Right of publicity extinguishes at death (right)
Right or property?
New York: ROP Extinguishes at death California: Up to 70 yrs after death (property)
CONSUMER PROTECTION LAWS
Traditional market Mostly face-to-face deal “Caveat emptor”: No remedy (“Let the buyer
beware”)
Modern market No face-to-face deal Lanham Act: No false designation of TM FTC Act: No unfair or deceptive practice (FTC
only) State laws: Same as FTC Act (but private
action OK)
DECEPTIVE ADVERTISING: SPALDING V. WILSON
Fact Wilson’s ads claimed that their golf balls are
superior to Spalding’s because of its perfect balance
Spalding argued it’s false & deceptive: (1) balance is only one factor in putting; (2) lab ≠ green
Rule & rationale Advertising claim is legal if not completely
misleading Balancing between fairness & competition
AMBUSH MARKETING: NHL V. PEPSI
Fact
Coca-Cola was the official sponsor of NHL Pepsi launched promotions tied to Stanley
Cup playoffs Pepsi disclaimed any official status in
promotion
Rule
No mark used No infringement under Lanham Act
Disclaimers were enough to dispel any sponsorship status
AMBUSH MARKETING: NHL V. PEPSI
Rationale: Lanham Act 43(a) not applicable
***“FALSE DESIGNATION” of origin in connection with goods, services, or their containers***
Unfair trade practice law does not provide official sponsors with utmost legal protection
Balancing competition and fairness
RIGHT OF PUBLICITY
Protects famous individual’s persona
Elements
Use of famous person’s name, likeness, or image
Without consent To gain commercial advantage
UNFAIR TRADE PRACTICE LAW
False advertising Balancing between competition and fairness Prior substantiation required if claim uses
experts or other reliable sources
Ambush marketing Try to dilute status of official sponsorship Hard to expel ambush marketers