Wednesday, June 25, 2008

M&M case has artists suing a major company for infringement

In a trademark case that reverses roles, a lone artist Robert Burck, who dances and performs at Times Square in New York as the “Naked Cowboy” with cowboy gear and white underpants reading that phrase, is suing Mars Inc. and its ad agency for using his image to promote its candies. Robert appeared on NBC’s “Today” show today. A judge in New York has ruled that his lawsuit can proceed.

The CNN news story is “’Naked Cowboy’ can sue makers of M&M’s” and appears here.

Burck says that the parody interpretation of First Amendment rights would not apply to selling things. He talked about candy and obesity type 2 diabetes (even in kids) on the show.

There can be questions as to whether Burck's sartorial custom in public represents a real "trademark" or brand in the meaning of the law. It does need some commercial purpose, although non-profits can use trademark law, and do.

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