Is there a right of Publicity in Marilyn Monroe?

Monroe’s estate has turned to protecting her name and likeness with trademark claims. In its lawsuit against AVELA, a company that sells nostalgic merchandise, the Monroe estate has asserted that the goods featuring Marilyn Monroe are a violation of their trademarks. AVELA filed a motion to dismiss arguing that the estate’s claims of trademark infringement are “a thinly veiled attempt to assert a right that does not exist — a right of publicity in Marilyn Monroe.”

The recent opinion rendered by U.S. District Judge Katherine Polk Failla focuses on the distinction between publicity rights and trademarks, stating that “[t]he key distinction between a right of publicity and a false endorsement claim is that the latter requires a showing of consumer confusion.” The judge didn’t give significance to AVELA’s objections regarding the unlikelihood of the estate’s ownership or the questionable viability of a false endorsement claim on behalf of the deceased icon. The judge reasoned that the “Court cannot conclude, as a matter of law, that the existence of the copyrights cited by the Movants precludes the Monroe Estate’s ownership and vindication of trademark interests in Monroe’s name, likeness, and persona.” As a result, the lawsuit will move forward.

What does this mean for celebrities and those working to protect their rights? It opens the door for them to use the publicity rights in conjunction with the trademark infringement laws to pursue other parties who wrongfully and illegally use their images for profit.

We will continue to monitor the Monroe estate litigation and report back on whether they are able to win on the merits of the case. The primary obstacle there will be whether or not the estate can demonstrate that consumers will be wrongfully led to believe that the deceased Marilyn Monroe or her heirs are endorsing the products in dispute.

Contact us today to schedule your initial consultation. The attorneys at The Swenson Law Firm provide a variety of business law services to entities of all sizes.

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