Tuesday, May 22, 2012

Burberry Scores a Bogie in Federal Suit

Cropped screenshot of Humphrey Bogart from the...(Photo credit: Wikipedia)Courtroom lawyers are accustomed to fighting in the trenches, but battling over trenchcoats is unusal.

In the United States District Court for the Southern District of New York, Judge Paul G. Gardephe is presiding over Burberry Ltd. & Burberry Group, PLC v. Bogart, LLC (Case No. 1:2012-cv-03491) in which the clothier is seeking declaratory judgment in a right of publicity and trademark infringement [15 U.S.C. sec. 1125] action involving the entity that owns the rights to Hollywood screen legend Humphrey Bogart.

As with seemingly every legal dispute nowadays, it all begins with Facebook. Burberry's Facebook page includes an historical timeline featuring famous people wearing its line of clothing, including actor Robert Mitchum, decked out in a trenchcoat worn in his tough-guy role from Out of the Past (1947) and actor Tyrone Power similarly attired from Razor's Edge (1946).

Currently missing is Humphrey Bogart wearing a trenchcoat that no doubt set Ingrid Bergman's heart aflame in Casablanca (1942). According to the plaintiffs' complaint, Bogart LLC allegedly fired off a cease & desist letter and sought damages for common law claims, right to publicity, a cousin of an invasion of privacy appropriation claim; and trademark infringement.

Presumably, the defendant's position would be that the clothier is capitalizing on Bogie's image without permission and that consumers would be confused over whether the since-removed image of the actor from the timeline constituted an endorsement of the product. As there is no specific line of "Bogiecoats" or ads marketing the actor, it would appear Burberry is asking the court for a ruling that it is within its First Amendment rights to acknowledge on its Web site that Bogart wore a trenchcoat in films, including Casablanca.

Under New York's right to publicity law, the nation's oldest, dating back as far as the Roberson case in 1902, a famous individual's image and persona may only be exploited commercially as a commodity during the famous person's lifetime. In California, however, where Bogart LLC is based, the right of publicity protection extends beyond the celebrity's death, so the case is no cakewalk for Judge Gardephe.  Fun fact: both Mitchum and Bogart donned their trenchcoats to play Raymond Chandler's detective creation Philip Marlowe in screen versions of The Big Sleep, though some 32 years apart. You're welcome.

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