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False endorsement

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Overview Edit

Under Section 43(a) of the Lanham Act, false endorsement occurs when a person's identity is connected with a product or service in such a way that consumers are likely to be misled about that person's sponsorship or approval of the product or service."[1]

A false endorsement claim based on the unauthorized use of a celebrity's identity . . . alleges the misuse of a trademark . . . such as visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiff's sponsorship or approval of the product.[2] In such a case, the "mark" at issue is the plaintiff's identity.[3]

While most of these cases arise in the context of a popular celebrity, some courts have held that celebrity status is not a necessary prerequisite for a successful false endorsement claim under the Lanham Act.[4]

Likelihood of confusion Edit

The key issue in a false endorsement case is whether "defendant's use of the mark to identify the its goods or services is likely to create confusion concerning the plaintiff's sponsorship or approval of those goods or services."[5] A plaintiff must be able to show that "the public believe[s] that 'the mark's owner sponsored or otherwise approved of the use of the mark.'"[6]

Courts analyze a variety of factors to determine whether the use of a mark creates the likelihood of confusion, including the level of the plaintiff's recognition among the segment of the society for whom defendant's product is intended, the relatedness of plaintiff's fame or success to defendant's product, and defendant's intent in selecting the plaintiff.[7]

References Edit

  1. See ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 925-26 (6th Cir. 2003).
  2. Waits v. Frito-Lay, inc., 978 F.2d 1093, 1110 (9th Cir. 1992).
  3. Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619, 626 (6th Cir. 2000).
  4. See, e.g., Hauf v. Life Extension Found., 547 F.Supp.2d 771, 777 (W.D. Mich. 2008); Ji v. Bose Corp., 538 F.Supp.2d 349, 351 (D. Mass. 2008); 540 F.Supp.2d 288, 306 (D.N.H. 2008).
  5. Facenda v. NFL Films, Inc., 542 F.3d 1007, 1014 (3d Cir. 2008).
  6. Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619, 626 (6th Cir. 2000).
  7. See Kournikova v. General Media Comm'n, Inc., 278 F.Supp.2d 1111, 1120-21 (C.D. Cal. 2003) (citing Downing v. Abercrombie & Fitch, Inc., 265 F.3d 994, 1007-08 (9th Cir. 2001)).

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