Naked Cowboy vs. M & M
NEW YORK (AP) - June 23, 2008 U.S. District Judge Denny Chin said a jury would have to decide
whether Mars' advertising campaign left the impression that Robert
Burck, who became a tourist attraction for strumming a guitar while
wearing just boots, underpants and a hat, had endorsed the product.
Chin tossed out claims that Burck is owed compensatory and
punitive damages because the M&M video advertisement that appeared
on two electronic billboards in Times Square and a mural violated a
New York State law protecting privacy rights of individuals.
The judge said the law protects the name, portrait or picture of
an individual but not a character created or a role performed by
the person.
Burck sued to protect trademarks he had obtained as he appeared
in television shows, movies and video games, including a Chevrolet
commercial that debuted during Super Bowl XLI.
The lawsuit was filed earlier this year against Mars and Chute
Gerdeman Inc., an advertising and design agency.
The Blue M&M Cowboy was part of an advertising campaign with
other M&Ms in famous New York scenes. One climbs the Empire State
Building like King Kong. Another looks like the Statue of Liberty,
arm outstretched. Yet another rides a carriage through Central
Park. The blue M&M strums a guitar wearing just underpants, boots
and a hat.
Lawyers for Mars and Chute Gerdeman argued that the lawsuit
should be dismissed because the M&M cowboy was a parody and
protected by the First Amendment.
Scott M. Rothman, a lawyer for Burck, said: "The Naked Cowboy
is obviously pleased with the judge's ruling that he has pled a
viable claim for trademark infringement under federal law."
A lawyer for Mars and Chute Gerdeman did not immediately return
a phone message for comment.
