The Volokh Conspiracy

William Fenrick ran for sheriff on a "back to Mayberry" platform:

During his campaign, defendant publicly stated that he believed an area of concern in Grant County was speed traps. He specifically referenced plaintiff and Mayberry in expressing his distaste for such law enforcement practices. For example, defendant stated “[t]hey never did that in Mayberry! They never did unethical stuff like that in Mayberry. See, that’s the thing about Andy Griffith. He was honest and straightforward and people respected him for that.”

In fact, he went so far as to change his name to Andy Griffith, and "used the slogan 'Andy Griffith for Sheriff' on t-shirts, yard signs, wristbands, ... and other items," including -- in a twist likely lacking precedent in the TV show -- "condoms."

The original Griffith sued, claiming Andy-come-lately's actions (1) were likely to confuse the public (and thus violated the federal Lanham Act), (2) would dilute the value of the original Griffith's trademark in his name, (3) violated state trade name infringement common law, and (4) state right of publicity law (see § 995.50(2)(b)).

No dice, the court said. As to confusion, "There is not a scintilla of evidence that anyone thought plaintiff was running for Grant County sheriff or that plaintiff was backing defendant’s campaign for sheriff." As to dilution, federal dilution law expressly exempts "[n]oncommercial use[s]," and use in a political campaign should be considered noncommercial. As to the state law claims, "it can be determined to a legal certainty that his damages could not reach $75,000," so the federal court lacks jurisdiction of those claims (and ought not exercise continuing supplemental jurisdiction, based on the now-dismissed federal claims).

The original Griffith may still refile the state claims in state court, though I doubt they will succeed. The candidate's use of the name likely won't be found to be "for advertising purposes or for purposes of trade," which is required for liability under the right of publicity statute. I suspect Wisconsin state trade name law likewise requires commercial use (beyond what is involved in campaigning for a paid government office); but even if I'm mistaken on that, the First Amendment should protect Griffith's speech notwithstanding what state law may say.

Thanks to Patrick Ishmael for the pointer.