Robert Burck has become an iconic figure in New York dressed in cowboy boots, white cowboy hat, and white underwear. So much of an icon, it appears, that the maker of M & M used a parody of his image in a commercial. U.S. District Judge Denny Chin has now ruled that he can sue for trademark infringement against Mars Inc. and Chute Gerdeman Inc. The culprit? that money-grubbing, opportunistic Blue M & M. He is seeking up to $100 million in punitive damages, plus attorney’s fees.
It appears that, in a demonstration of junk food peer pressure, Yellow M & M has also been seen in such outfits.
It turns out that the naked cowboy may be wonderfully spontaneous in Times Square but he had the presence of mind to trademark his name and likeness.
Burck stripped the legal matter bare: “I have spent 10 years in every kind of weather and going through the legal, step by step [process of getting a trademark]. It is imperative that damages are pushed so … an example will be set.”
The common law also protects such commercial appropriations of name or likeness, including a Ninth Circuit case that held that a company had violated the rights of Vanna White by using a robotic with a blond wig and turning numbers in a commercial. I continue to have serious difficulty with such cases of parody.
In the meantime, the Naked Cowboy is back in Time Square asking tourists to stick money in his boots.
Of course, you will need some pretty big boots to stick $100 million into, but he seems ready to try.
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