COMPETITION / TRADE MARK
The U.S. Court of Appeals for the Ninth Circuit has addressed the issue the use of whether the use of a deceased celebrity’s likeness or persona in connection with a product constitutes a false endorsement that is actionable under the Lanham Act, and has upheld a District Court’s finding of false endorsement and economic interference against defendants who had been selling T-shirts featuring an image of the late reggae icon, Bob Marley. Fifty-Six Hope Road Music v. A.V.E.L.A., Inc., Case Nos. 12-17502, 12-17519, 12-17595, 13-15407 and 13-15473 (9th Cir., Feb. 20, 2015) (Smith, J.) (Christen, J., concurring-in-part and dissenting-in-part).
It wasn’t disputed that in 2004, A.V.E.L.A. acquired the rights to some photographs of Marley from a photographer, Roberto Rabanne. A.V.E.L.A. then licensed the images to defendants Jem Sportswear (Jem) and Central Mills (Freeze) and Jem and Freeze used the photographs on Marley T-shirts and other merchandise, which were sold at retail outlets. In 2008, Hope Road sued A.V.E.L.A., Jem and Freeze for trademark infringement and false endorsement under the Lanham Act, for common law trademark infringement, as well as for unauthorized commercial use of right to publicity and intentional interference with prospective economic advantage under state law.
The District Court granted the defendants’ motions for summary judgment dismissing the Lanham Act and state law trademark claims as well as the state law right of publicity claim. However a jury returned a verdict in favour of Hope Road on the false endorsement claim against the defendants. The jury also returned a verdict against A.V.E.L.A. on the interference claim. Both sides appealed. Hope Road appealed the district court’s summary judgment grant and the defendants appealed from the jury verdict.
The 9th Circuit affirmed both the district court grant of summary judgment and the jury’s finding of interference against A.V.E.L.A. The 9th Circuit also affirmed the jury’s finding of false endorsement under the Lanham Act, finding the evidence was sufficient for a jury to find a violation.