The Naked Cowboy Has A Trademark And A Lawyer... And He's Not Afraid To Use Either

from the our-wonderful-society dept

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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Filed Under: naked cowboy, trademarks
Companies: mars


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  1. identicon
    Willton, 18 Feb 2008 @ 12:47pm

    Re: He should be sued himself

    I don't see how he can claim that Mars infringed his trademark since he wasn't the first person to do it.

    Because that's not how trademark law works. If Burck and some other competitor were both using the Naked Cowboy mark, then the one who used it first gets priority over the other. But one can only get trademark protection for a mark if he uses the mark, and he can only get protection where he uses the mark.

    So while Nestle may have come up with the mark first in Australia, Nestle has no protection over the mark if Nestle does not use the mark anymore. And if Nestle does still use the mark, it clearly does not use the mark in the United States. And if Nestle were to try to use the Naked Cowboy mark in the United States, Nestle would be infringing on Burck's use of the mark because Burck has priority over Nestle in the United States.

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