Monthly Archives: February 2008

Burck v. Mars, Inc. (aka, the Naked Cowby v. M&Ms.)

I have to thank my student Jeniffer for bringing this to my attention. I have to admit, that I’ve actually seen stranger things happen in New York. And in this instance, I don’t know which is stranger, the Naked Cowboy or the lawsuit he has filed against Mars, Inc. for “trademark infringement under the Lanham Act and violation of his right of publicity under New York Civil Rights Law §51, arising from a video billboard for M&Ms.”

According to CNN, to lay a little ground work,

For the past 10 years, [the Naked Cowboy has been] the guy you’ve seen on the sidewalk, with the great body, strumming his guitar and singing, dressed in a cowboy hat, cowboy boots and underwear — and nothing else, even in the dead of winter. (Source)

A recent video ad produced by M&M, Mars, Inc. “depicts an M&M frolicking around New York, in what kind of looks like Times Square, in what kind of looks like The Naked Cowboy’s outfit — briefs and nothing more than a smile.”

Now, I don’t pretend to know (or even understand) trademark law in any great detail. I leave that to lawyers like my good friend Randazza to comment on. But, the limited amount of information I know, I have to agree with CNN that the guy might have a case.

According to the Naked Cowboy Complaint,

Burck has licensed The Naked Cowboy name and/or likeness to companies for the purposes of advertising and endorsement. Mars, Inc., had no immediate comment.

His character is part of the USA Network’s “Characters Welcome” campaign; he appeared in a music video for the song “Rockstar” by the multiplatinum artist Nickelback; and he’s featured singing in the video game “True Crime: New York City at Times Square.”

He also has appeared in several movies and television programs, including “Starship Dave,” “Survive This,” “Mulva: Zombie A** Kicker,” “Steve Harvey’s Big Time,” “New York Minute,” “Creature Feature,” “Lonely Planet,” “Troma’s Edge,” “American Icon” and “The Howard Stern Show.”

Well, as always, I will strive to keep you informed as to the developments of this case.

Yee haw!


Suicide Girls’ Model Contracts: Invalid

There are provisions of contracts referred to as “non competition clauses.” In many instances, producers or employers will attempt to narrowly define what the talent or employee can or cannot do when he / she is not working for that particular employer. In many instances, such clauses are invalid. But this is not always the case, and such a discussion is beyond the scope of this posting. In this instance,

A Los Angeles Superior Court judge has voided Suicide Girls’ modeling contracts, ruling that their exclusivity terms are too broad to legally keep models from doing outside modeling work. (Source)

In many instances, those wishing to challenge the provisions will argue that such restrictions are against public policy. But it looks like here that the judge felt the competition provisions were too broad to be enforceable.

Texas “Obscene Device” Law Struck Down

The Texas legislature recently enacted a broad prohibition on the “selling, giving, lending, distributing, or advertising” of “obscene devices.” The law defined “obscene device” as any device “designed or marketed as useful primarily for the stimulation of human genital organs.” The law was just struck down as unconstitutional by the 5th Circuit Court of Appeals.

I didn’t write about this, but my very good friend Marc Randazza did. Well worth the educational experience.

Read about it here!

A&F accused of obscenity

That’s right! Abercrombie and Fitch has just been charged with obscenity. If the FCC’s allegations of a “side boob” and buttocks didn’t get you upset, these allegations against A&F might.

According to the Associated Press,

Police confiscated two display photos of scantily clad men and a woman from a national chain clothing store and cited the store’s manager on a misdemeanor obscenity charge, authorities said. (Source)

Apparently, after a warning, the store refused to remove the photos that

showed three shirtless young men, with one man’s upper buttocks showing. The other image was of a woman whose breast was mostly exposed, authorities said. (Source)

Here’s my issue: the kids are going to be wearing the clothes in this fashion anyway, so what’s the big deal with a picture of an adult wearing them this way??

I’ll keep you posted on the developments of this case.

Read the full Story.

Update: February 5, 2008

Two words: Case Dismissed

Posters of scantily clad youths that were seized by police at an Abercrombie & Fitch store in a Virginia mall this weekend may be inappropriate for young children, but they are not obscene, according to legal experts.

Virginia Beach police apparently have agreed. On Monday, they dropped charges against the clothing company that markets to prep chic teens through sexually charged imagery.

Read this update.