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Intellectual Property Law

Judge Sides With Naked Cowboy in Candy Co. Claim re Trademark Role

Posted Jun 23, 2008 2:45 PM CDT
By Martha Neil

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The Naked Cowboy clearly is unconventional. But Robert Burck is enough of a mainstream businessman to have successfully pursued an intellectual property claim over a candy company's alleged misuse of his trademark persona past the motion-to-dismiss stage.

It wasn't a complete victory for Burck, whose seemingly naked guitar-playing character in New York City's Times Square isn't protected by privacy law, because the Naked Cowboy is a fictional persona, U.S. District Judge Denny Chin found. But the judge said in a written opinion today that Burck can pursue a false endorsement claim over a Times Square billboard featuring an M&M candy clad in the same skimpy outfit, because "he plausibly alleges that consumer seeing defendants’ advertisements would conclude—incorrectly—that he had endorsed M&M candy," reports the Wall Street Journal Law Blog.

The newspaper provides a link to Chin's written opinion (PDF)—which features on its first page photographs of both the Naked Cowboy and the similarly minimally clad candy, and begins with the explanation: "This is the case of The Naked Cowboy versus The Blue M&M."

Earlier coverage:

ABAJournal.com: "NYC’s Naked Cowboy Says Candy Corp. Stole His Trademark Skimpy Outfit"

ABAJournal.com: "M&M Lawsuit Just One Part of Naked Cowboy’s Financial Plan"

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