Intellectual Property Law

Naked Blue M&Ms and Endorsements

By Tim Armstrong, Derek Bambauer, and William McGeveran.

What better way to dive back into regular blogging than to discuss the Info/Law implications of a naked blue anthropomorphized M&M in Times Square?

A recent decision by Judge Denny Chin in New York federal court involved two billboards in Times Square advertising M&M candies. The video animation in the billboards depicted M&Ms in various iconic scenes of New York City: an M&M hailing a cab, an M&M as the Statute of Liberty, an M&M as King Kong scaling the Empire State Building, and so on. Among these was a blue M&M dressed up like “The Naked Cowboy,” a long-time street performer who appears in Times Square in nothing but his boots, hat, undies, and strategically placed guitar. (Wikicommons image here.) The performer behind the character, Robert Burck, sued M&M maker Mars Inc. and its ad agency for two claims. First, he claimed infringement of his trademarks in the Naked Cowboy. He also claimed a violation of a New York privacy statute prohibiting use of a person’s “name, portrait, picture, or voice” in an advertisement without written consent. (This is one of the statutes I have previously suggested could be seen as prohibiting some of Facebook’s advertising programs.)

Importantly, the decision was just a ruling on initial motions to dismiss the case — essentially, arguments by the defendants that the claims are groundless so the judge should throw them out out before the litigation really gets started. Mars got a split decision. Which claim had no merit, according to the judge?

Full post as published by Info/Law on July 03, 2008 (boomark / email).