Marilyn Monroe Estate Trying To Use Trademark To Enforce Publicity Rights Court Said It Doesn't Have
from the any-IP-will-do dept
As you may or may not recall, way back in the distant past of 2012, we discussed a somewhat important court ruling over publicity rights. The case concerned the estate of Marilyn Monroe, America’s most famous long-dead Presidential-birthday crooner, and AVELA, a company that specializes in producing nostalgia merchandise. At issue were consumer products AVELA had affixed with images of Monroe and a then-recent change in California law that applied publicity rights to dead celebrities that had lived in the state at the time of their death. The Monroe Estate, which had long argued that Monroe did not live in California in order to evade paying the estate tax, suddenly reversed course and claimed California as Monroe’s home afterall. The court saw through this and ruled that posthumous publicity rights didn’t apply to Monroe.
But because the kind of people looking to bank off of the likeness of a relative who died five decades previously aren’t the kind of people likely to give up on the endeavor simply because justice isn’t on their side, the Monroe Estate is back, attacking the same AVELA company for the same perceived infractions, except now they’re making their claims under the auspices of trademark law.
The Monroe Estate is now in court against AVELA, a company that specializes in nostalgia merchandise, and is asserting that goods featuring Monroe are a violation of trademarks. In a motion to dismiss, AVELA argued that the trademark claims are “a thinly veiled attempt to assert a right that does not exist — a right of publicity in Marilyn Monroe.”
In her opinion on Friday, U.S. District Judge Katherine Polk Failla spells out the difference between publicity rights and trademarks. “The key distinction between a right of publicity and a false endorsement claim is that the latter requires a showing of consumer confusion,” she writes. Shrugging off other objections including the implausibility of the Monroe Estate’s ownership and the viability of a false endorsement claim on behalf of a deceased celebrity, the judge allows the lawsuit to proceed.
And so, with the judge’s ruling, there will now be a court hearing over whether the public might be confused that a dead pinup model and actress may have zombie-endorsed some coffee mugs. Ain’t America grand? There’s quite a hill to climb for the Monroe Estate to demonstrate any kind of likelihood in customer confusion, as the death of Marilyn Monroe is kind of well-known. It ought also enter into the equation whether or not people even consider the idea of an endorsement when buying a trinket emblazoned with a historical figure’s likeness. Past court cases are unlikely to help either.
Of course, the Monroe Estate still has to win on the merits and this might not be clear cut. For instance, the opinion mentions a prior case where Fred Astaire’s widow sued over the “Fred and Adele Astaire Awards” and failed because the plaintiff was unable to show “that consumers will be deceived into believing that the late Fred Astaire endorsed defendants’ awards.”
While this case shouldn’t take long to adjudicate if judged on the merits, what is clear is that this kind of harrassment legal action whereby one party loses a decision and simply decides to employ another form of intellectual property on the same grounds should be slapped around by the courts. IP law isn’t done by shotgun blast, after all. Or, at least, it isn’t by those with an ounce of integrity.