Mehmet Oz, M.D. is taking the fight to the scam operators who have been duping the public using his good and extremely popular name. Indeed, the two-time Emmy Award-winning, nationally syndicated daytime series The Dr. Oz Show is launching an aggressive campaign to stop illegal use of the Dr. Oz name, image and show. This campaign dubbed “IT’S NOT ME,” began Monday, May 6, 2013.
As you may be aware, over the past several years the Internet has become overrun with advertisements featuring one or another product allegedly endorsed by Dr. Oz. On Monday Dr. Oz told viewers that he endorses none of these and he is going to fight to take back his name.
“Today I am taking back my name and protecting my viewers from people I consider dangerous, who try to mislead you into buying products I don’t endorse,” Dr. Oz told the audience. “Anything you see on this show is part of a conversation I am having with you about your health. We are always transparent about our trusted, official partnerships and a full list of these partners is available on our website.”
The Dr. Oz Show has produced close to 700 shows in four seasons. Unfortunately, with every new episode comes the opportunity that charlatans will find actionable information that they can use to exploit the unwary. The largest organized fraudulent efforts include green coffee bean extract, raspberry ketones and garcinia cambogia, but there have been others.
In all over 11,000 complaints have been logged through the OzWatch portal, which is devoted to detecting and enforcing infringement. OzWatch was launched in September 2012 to combat e-mail spamming, targeted ads and robo-calls reported by viewers of The Dr. Oz Show.
As a part of his effort to fight fraud and the misappropriation of his name and the name of his show, starting May 6, 2013, Dr. Oz will end each show with a disclaimer that reads:
If you receive an e-mail or any kind of direct marketing claiming to be from me selling a product with my name, my image or the show’s name, you need to know IT’S NOT ME! I consider anyone that uses my name or my picture to try to sell you a product or supplement reckless and dangerous. They are undermining my credibility with you and the trust you place in me. More importantly, it could be dangerous to your health. Please go to doctoroz.com/oz-watch to report if you receive any messages that use me to sell you anything. To see a list of our trusted partners, please go to Dr. Oz.com.
So will he be successful?
First, the announcement circulating from The Dr. Oz Show explains that he plan on fighting copyright infringement associated with those who are taking and using his name and the name of his show. This is almost certainly not a copyright issue. Copyrights protect expression, not names or likeness of an individual. Of course, if they are using excerpts from his television show that would be a copyright issue. If there is copyright infringement here there will be very little difficulty getting it under control thanks to the Digital Millennium Copyright Act.
Far more likely is that Dr. Oz will be resorting to the right of publicity and trademark law.
The “right of publicity” is the inherent right of every human being to control the commercial use of his or her identity. Please note these carefully chosen words. It is the right of “every human being,” not the right of every person. In many contexts we could substitute the phrase “every human being” with the word “person,” but it is important to remember that the right of publicity is an individual right. When the word “person” is used in the law we most often define “person” to include corporations or other similar entities. This is not the case with the right of publicity. The right of publicity does not protect the persona of a corporation, partnership, institution or other similar entities; it protects only the human identity. See, for example, Eagle’s Eye, Inc. v. Amber Fashion Shop, Inc., 627 F.Supp. 856, 862 (E.D. Pa. 1985).
The first time the term “right of publicity” was used was by Judge Jerome Frank in Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953). Shortly thereafter The Right of Publicity, 19 Law & Contemporary Prob. 203 (1954), which is the seminal law review article in the area, outlined the right of publicity. The concept of a property right in one’s identity evolved initially from the tort of invasion of privacy. As the right of publicity matured it became recognized as a right independent from the right to be left alone embodied in the tort of invasion of privacy. As the right of publicity became its own, independent cause of action it increasingly became associated with copyright and trademark law. Given the evolution of this doctrine, and the fact that it is largely both a commercial tort and a form of unfair competition, the right of publicity is properly characterized as an intellectual property right.
In the United States, the right of publicity is largely protected by state common or statutory law. Approximately half the states have distinctly recognized a right of publicity. Of these, many do not recognize the right by that name, choosing rather to protect it as part of an individuals right of privacy. The Restatement (Second) of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness, unreasonable publicity and false light. Under the Restatement’s formulation, what we commonly think of today as the right of publicity is closest to the unauthorized appropriation of one’s name or likeness. See Restatement (Second) of Torts § 652C, comments a & b, illustrations 1 & 2. Other states protect the right of publicity through unfair competition laws.
On the federal side of the equation, if a person can establish an aspect of his or her identity as a trademark, protection may be provided by Federal law. U.S. trademark laws can also provide protection where a person’s identity is used to falsely advertise a product or designate its origin. A quick search of the USPTO trademark database shows that there are a number of trademarks associated with Dr. Oz. For example there is a trademark covering The Dr. Oz Show (Registration No. 3953442) and several that cover Dr. Oz (i.e., Registration No. 3852288).
Infringement of the right of publicity can be triggered by any unauthorized use in which the plaintiff is “identifiable.” A plaintiff is identifiable by name, nickname, stage name, pen name, picture, photograph, voice (particularly a distinctive voice) or any object closely identified with a person. Trademark infringement can be triggered with any unauthorized use of a trademark, or even use that is not identical but likely to mislead the consuming public. It certainly seems that the fraudulent operators in this space are running afoul of these rights.
It seems that the law is on the side of Dr. Oz, so legally he shouldn’t have much difficulty. But legal matters are only one part of the overall equation. It seems as if Dr. Oz may have waited a rather long time to take action, which can make it difficult to eradicate. When an individual’s name or business name is involved swift action to address misappropriation is virtually mandatory. Real damage to reputation and good-will can occur far more quickly than a good reputation and positive good will can ever be created.
If Dr. Oz wants to fight the fight he should be successful. He is a big enough personality that Internet companies should take notice and should help to ferret out unscrupulous and unauthorized uses of his name. Indeed, in the Fall of 2012 both Facebook and Amazon expressed at least some willingness to clamp down.
However, the Facebook statement from September 2012 is a mixed bag really. The company told Dr. Oz:
Facebook respects the intellectual property rights of others and is committed to helping third parties, including Dr. Oz, protect their rights. Our Statement of Rights and Responsibilities prohibits users from posting content that violates another party’s intellectual property rights. No content or ads may include content that infringes upon or violates the rights of any third party, and upon notice of such impermissible content, we stand ready to respond including by removing the content from Facebook.
That said, with over 955 million users posting copious amounts of content daily, it is not possible to proactively monitor uses of Dr. Oz’s intellectual property. Furthermore, only a rights owner is in a position to identify when it believes its intellectual property rights are being violated with respect to any specific content on our site.
Accordingly, in order to facilitate rights owners’ ability to report content that they believe infringes their rights, we provide easy-to-use web forms for reporting such content and maintain a robust infrastructure to review specific content that is reported to us, and if necessary, to remove content that violates our policies. Additionally, we have technical systems in place to identify and remove suspected fake accounts based on anomalous site activity. We are constantly iterating on these systems and developing new ones, to provide an even better experience for the people who use our service.
So they are committed to respecting intellectual property rights, but aren’t all that interested in proactive measures. This can be a real problem. Facebook and others on the Internet have an incentive to sell advertising that gets people to click through. So portals and search engines will help those intellectual property owners who help themselves. Thus, an aggressive policing campaign needs to be a part of the bag of tricks for those, like Dr. Oz, who are susceptible to having their name and likeness misappropriated.