by Mike Masnick
Fri, Feb 15th 2008 4:01pm
Eric writes in to let us know of a rather odd trademark infringement lawsuit going down in New York. It appears that "The Naked Cowboy," a Times Square institution (he's basically a guy who plays a guitar in Times Square in a cowboy hat and underwear) not only has a trademark on the concept, but he's suing the Mars Company for a video billboard it put up in Times Square (of course) showing animated M&Ms prancing around in cowboy hats and underwear in a virtual Times Square. As the article above reports, the guy may actually have a case of trademark infringement under current laws, though $6 million seems a bit excessive no matter how sure the cowboy (real name: Robert Burck) is of his chances. The real question, though, is whether or not this makes any real sense. The purpose of trademark law is to prevent consumer confusion. It's to prevent Bob's Cola from labeling its bottles as Coca Cola and getting people to buy something other than what they think they're buying. Is that the case here? Will M&Ms buyers be confused? I doubt it, even when we apply the famous "moron in a hurry" test. It's certainly difficult to see how the ad takes anything away from Burck himself -- though, I imagine the lawsuit should only serve to draw more attention to him, which is likely the point, whether or not he scores $6 million out of Mars.
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