The Right of Publicity: A Doctrine Gone Wild?
No Comments » | Page viewed 339 times | Written by Andrew Beckerman-RodauPosted: Thursday, March 11, 2010 @ 7:15 pm
Posted in: Guest Bloggers, IP News, IPWatchdog.com Blog, Trademark, right of publicity

The recent dispute involving Lindsay Lohan and ETrade (see AP report on YouTube) provides an opportunity for critically examining the right of publicity. The right of publicity is one of the newest intellectual property rights available under U.S. law. It allows a celebrity, such as Ms. Lohan, to control the commercial use of her name and/or likeness. This right is a distinct right that exists in addition to unfair competition and trademark rights.
Existing unfair competition law allows a celebrity to object to use of her name and/or likeness in a commercial context if the use is likely to confuse members of the intended market such that they believed the celebrity was endorsing the product. (See, e.g., 15 U.S.C. sec. 1125(a)). Additionally, a celebrity may be able to assert trademark rights in her name. But a trademark infringement action would also require demonstrating a likelihood of confusion among consumers. The right of publicity provides an additional right which enables a celebrity to object to use of her name and/or likeness even if no confusion exists among consumers.












The Federal Circuit’s recent decision in 

Would you go on the Internet, or look in the phone book, search for a Family Doctor, call them or email them and then ask him or her, “Can you recommend a good Family Doctor to me?” Here’s another question for you, would you search on the Internet for a Family Doctor in another state, call them and ask them if they can recommend a good doctor to you in your geographical area? Do you honestly think that a doctor, who is, let’s say, in NY would really know and could recommend a Family Doctor to you in say, Seattle, Washington? More often than I’d like to admit, we get emails through our contact form only to be asked these exact questions. I decided to Twitter about this, because I thought it was hilarious, but then it was suggested to me that I write a blog post on this very topic. Hmmm, why didn’t I think of that?!?
On March 2, 2010, Apple, Inc. (NASDAQ:
TiVo, Inc. (NASDAQ: 




I recently passed the patent bar, and I’m currently in the limbo phase before I receive my registration number. This is a big shift for me, as I believe the change will open many doors for me and my business, Simple Patents, which just launched the 
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