TRADE MARK
Artists

Rosa Parks, who famously refused to give up her seat on a bus for a white man in Montgomery, Alabama in 1955 is close to reaching a settlement with hip-hop duo Outkast over the use of her name. Mrs Parks was arrested for the act and her action prompted a 381 day boycott of the city’s buses by the black population. The dispute relates to a 1998 song Rosa Parks released by Outkast which makes little reference to the Mrs Parks save for the lyric ‘Aha, hush the fuss, everybody move to the back of the bus’. However the title, lyric and reference to sex in the song prompted lawyers for Mrs Parks to bring an action in 1999 against Outkast for failing to secure permission to use Mrs Park’s name and false advertising. Outkast claimed the right to freedom of speech under the First Amendment to the US Constitution and the case was dismissed in the District Court. The case was reinstated in the superior court along with a second claim against stores which sold the album was due to go ahead in the summer but both parties agreed to settlement talks with a mediator.

In a federal suit filed in Atlanta on Dec 8th 2004 against Moe’s Southwestern Burritos LLC, Jerry Garcia’s family is alleging the burrito chain has used Garcia’s image unlawfully to sell tacos and Southwestern food. Moe’s stands for Musicians, Outlaws and Entertainers, and the chain has been using images of deceased celebrities including Jim Morrison, Janis Joplin, Bob Marley, Frank Sinatra, Elvis Presley and others as restaurant artwork and as the inspiration for the names of menu items. Food offerings include the “Alfredo Garcia,” a fajita dish, the Full Monty taco, and a Puff the Magic Dragon taco. The Garcia estate suit accuses Moe’s of violating federal trademark and copyright laws and state fair trade laws and is asking for unspecified but “significant” Specifically, the suit said paintings of Garcia were installed at more than 130 franchises, and the images were used in print advertising without the estate’s permission. The suit also said the trademarked lyrics of the Garcia song, “Casey Jones,” were altered and hung in stores. The changed lyrics read, “Trouble Ahead, Trouble Behind, Just Have My Taco Ready on Time,” in a violation of a trademark on the song, the suit said.

The burrito chain claim that they have the right to use a painting that was created by an artist, even if it looked like Garcia, and Moe’s defence lawyers have cited the First Amendment that protects an artist’s ability to create artwork and anyone’s right to display that artwork if in lawful possession of it, even if it bears similarity to a public figure. The Garcia name has been licensed in the past including its use as the Ben and Jerry’s ice cream flavor Cherry Garcia.

Source: The Independent, 2 January 2005