Paris' "Hot" Lawsuit: A Legal Hallmark?

Image via Wikipedia

Whether celebrity heiress Paris Hilton's lawsuit succeeds is in the cards--Hallmark Cards, that is.

Hilton sued the Kansas City, Missouri-based greeting cards maker in U.S. District Court for the Central District of California in 2007(Case No. 2:07-cv-05818) alleging misappropriation of publicity (i.e., invasion of privacy),false designation under the Lanham Act, and infringement of a federally registered trademark. Hallmark, in turn, filed an anti-SLAPP motion against Hilton, arguing her suit was frivolous and violated the company's First Amendment free speech right.


The row involves a greeting card that superimposes Hilton's head onto a cartoon body of a waitress serving food to a male customer, warning: "Don't touch that, it's hot." The customer responds: "What's hot?," eliciting HIlton's hilarious rejoinder: "That's hot!." Inside, the card reads: "Have a smokin' hot birthday."

Hilton registered the phrase "That's hot!" with the U.S. Patent & Trademark Office. She frequently uttered the expression on her fish-out-of-water reality series "The Simple Life," that featured Hilton and her former "BFF" Nicole Ritchie as privileged "princesses" engaged in rustic or working-class settings, such as feeding livestock.

Hilton claimed the Hallmark card employing her catchphrase was lifted from the exciting episode of her series entitled "Paris' First Day as a Waitress" in which she toiled for the Sonic Burger fast-food eatery. The district court tossed Hilton's trademark infringement claim, but rejected Hallmark's anti-SLAPP motion.

This week, a three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit weighed in (Hilton v. Hallmark Cards. Docket No. 08-55443). The appellate court upheld the dismissal of the anti-SLAPP motion and was unpersuaded by Hallmark's transformative use defense, remanding the case to the district court where Hilton may proceed on her privacy/publicity claim.  Hallmark is considering appealing the ruling to the full bench of the Ninth Circuit or the Supreme Court.

The appellate court decision, in rejecting the anti-SLAPP motion, said that although Hilton's claim does not merit judgment in her favor as a matter of law, "she has at least some probability of prevailing on the merits before a trier of fact."

In the wake of this litigation, don't expect any greeting card company to take a flyer on a line of "Thinking of You" cards featuring images from the heiress' iconic Internet sex tape.