When Cingular released its "Mach 1" and "Mach 2" wireless services, it sent out a press release that included the following language:
"Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers."
Yeager sued for violation of the federal Lanham Act and his common law rights of publicity. Cingular moved for summary judgment on the grounds that their reference to Yeager's flight was protected by the First Amendment, and -- unbelievably -- last week District Judge Frank Damrell denied the motion and held that Yeager's claims can proceed to trial. [Rebecca Tushnet has blogged here about the case] It's a sad commentary on what the First Amendment means these days -- where in heaven's name is Justice Black when we need him?? As Prof Tushnet put it: "This is why the current right of publicity is a terrible, terrible thing. If some people think Yeager is somehow associated with Cingular because of this press release making a single textual comparison with a historical event, that’s because trademark owners have convinced people that ridiculous ownership claims must be okay."
Comparison /= endorsement. If you don't want to be referenced for accomplishing amazing feats, then don't do amazing things.
Bringing up Yeager's good name and showing him breaking Mach 1 is even more serious since he is an actual hero.
Further, the statement as used would fool me into thinking Yeager was endorsing the service and make me more likely to order it.
or "an airforce pilot broke the sound barrier x years ago"
if they referred to HIM and his act, but not by name would yeager have a case?
not that i am saying his case here is a good case or isn't, but you know what i mean
Whit - (ritual disclaimer) I am not a lawyer, but I suspect that if they simply referred to the event, without getting too specific, Yeager probably would not have a case.
I am obviously not a TM expert, but if you could flush any right to publicity case via the 1st Amdt., then it would be pretty hard to make them stick. I can just see this sort of ad: "just like Tiger Woods winning his 14th major and the U.S. Open for the third time, Dewey, Cheatem, and Howe stick with you for the long run". I am sure with a name like that, they aren't paying Woods, but it was news when he won that tournament this month. Trademark Fair Use? Or violation of the Lanham Act or the CA right to privacy?
Did I miss something?
Why shouldn't people think that? Do people really think Brett Farve came back for his 400th season just because he bought a "Bowflex home gym" or that Peyton and Eli Manning led teams to the super bowl by eating lots of Oreo Cookies? If everybody else in the world has the right to control who uses their name commercially, why shouldn't Yeager?
This was a 12(b)(6) motion, with significantly different standards than a summary judgment motion (as Tushnet noted and as was mentioned several times in the body of the 7-page order and addressed in five of the six footnotes in the analysis.
Moreover, consider Cingular's arguments, e.g., that the press release was not commercial speach but rather 'a news release on emergency preparedness' and that the name 'Chuck Yeager' is just as much in the public domain and void of protection as 'Red Riding Hood'. Likewise, consider what Cingular apparently did not offer: a single case where a court determined at the motion to dismiss stage that a piece of alleged commercial speech was actually a protected news release, *3, any case where, on a motion to dismiss, a court has dismissed a claim based upon the applicability of the incidental use defense, *5, or any case where, on a motion to dismiss, a court has dismissed a claim based upon the nominative fair use, *7.
Rulings on motions to dismiss do not seem to be the right place to hatch changes in the law -- and you'd certainly not expect someone posting here to advocate that district court judges should engage in such 'activism' in a pre-trial ruling.
Anyway, I thought he was dead.
With all due respect, you've got to be kidding. The ad merely mentions a well-known historical event involving a word that matches the product name.
I'm with Prof. Post. Nothing in that ad could reasonably be read as an endorsement by Yaeger.
If it was just about the accomplishment itself, there's no need to use Yeager's name: "40 years ago, mankind broke the sound barrier for the first time..."
I don't care what kind of "press release" it was, this is commercial speech, designed to sell a commercial service. If Cingular expects to make money off of Yeager's name, why shouldn't Yeager?
Carolina, advertisement works generally below the level of "reason." Yes, if you sit down and analyze it, there's nothing in the statement that actually claims an endorsement by Yeager. But show that to a panel of average folks, and ask them 30 minutes later whether Yeager endorsed the Mach 1 and Mach 2 service, I guarantee you a large percentage of them will say that Yeager had endorsed the product.
my leagal sense tells me this is commercial speech and there is limited 1st amendment protection.
my moral sense tells me this is exactly what is wrong with the state of intellectual property today.case by case analyses that lead to no certinty and people being sued over innocuous activity.
A double dare?
as opposed to politics or the law?
:)
As long as the right of publicity survives, there are going to be line drawing problems. And, to look it from the other way, Cingular almost certainly put the Chuck Yeager reference in the advertisment precisely to draw on some accumulated goodwill.
It's also brought under the Lanham Act, which I'm pretty sure has no "endorsement" element. I think Lanham Act claims usually turn on likelihood of confusion. I'd be surprised if this story was reporting a verdict for the plaintiff, but rejecting a 12(b)6 motion seems perfectly reasonable.
Now imagine the same text with a sepia-toned photo of him giving the thumbs up from way back then with a superimposed MACH 1 logo. I think most people would still assume that Yeager was endorsing the product.
Next, the same ad with a sepia-toned public domain image of the plane that broke the sound barrier. At this point there could be reasonable disagreement as to whether there was an endorsement.
Finally, the actual press release, which has the text but no image. I'm not so sure that this is so clearly different from the ad just mentioned that I would be willing to dismiss the case out of hand. Reasonable people can disagree about whether it implies there is an endorsement. For me, it calls to mind an ad of the sort just mentioned, which does imply endorsement.
And to go one step further, if the press release had simply said, "Nearly 60 years ago, a test pilot broke the sound barrier and achieved Mach 1," nobody could reasonably think there was an endorsement by Chuck Yeager.
No, and please think this through before mentioning it near the wrong person. Do you really want to set the precedent that US government has developed a public identity which they can exert control over the use of through the courts? Do you want websites and newspapers being sued for using the US governments public image without government approval and for lowering the value of the government's public image by noting a congressman being involved in a scandal (oh yes, in the name of the taxpayers, of course, not as an attempt to stop criticism of the rulers but for the taxpayers who have spent a lot of money to develop a public image)?
Will you help me pay my legal fees after I introduce President Kennedy cologne? How about Neil Armstrong Moon Pies?
In his later years, Yeager has earned a living by associating his name and likeness with various products. Using his name without compensating him takes away his market, and dilutes the value of his name. If Verizon uses his name in commercials, neither ATT nor Sprint will be likely to hire him as a pitchman. He loses control of his name.
That wasn't exactly my point. I was being a little sarcastic about a cut of the action. But Yeager is famous only because of his taxpayer-funded activities. So it's not like he's cashing in on fame for being a great golfer, or a movie star, or a software developer.
I don't mind him cashing in on the fame the military provided him. But to go after Cingular for "his" publicity seems a stretch.
Isn't this something like the old property hypothetical about the guy who finds the lost property and then has it stolen from him by a thief: as we all know the finder doesn't have perfect title, but certainly has better title than the thief.
Here you might complain about how Yeager became famous and grouse about whether or not he should be able to exploit his fame, but surely he has a better right to exploit his name and accomplishments than Cingular.
And if we're being sarcastic, we might as well point out that at least Yeager did something useful to earn his fame, as opposed to "great golfers and movie stars".