Antitrust Law Daily Wrap Up, ADVERTISING NEWS: High Court denies review of Bob Marley false endorsement case, (Nov 3, 2015)

By Greg Hammond, J.D.

A.V.E.L.A., Inc.—a company that allegedly enhanced and refurbished for use a variety of merchandise containing copyrighted and public domain images of Bob Marley—was denied Supreme Court review yesterday of a decision by the U.S. Court of Appeals in San Francisco that affirmed denial of A.V.E.L.A.’s post trial motion for judgment as a matter of law on a Lanham Act false endorsement claim (A.V.E.L.A., Inc. v. Fifty-Six Hope Road Music, Ltd., Dkt. 15-264).

The district court jury concluded that A.V.E.L.A. and other defendants violated the Lanham Act by using Bob Marley’s image on t-shirts and other merchandise, in a manner likely to cause confusion as to Fifty-Six Hope Road Music, Ltd.’s and Zion Rootswear, LLC’s sponsorship or approval of the t-shirts and merchandise. Hope Road, formed for the purpose of acquiring and exploiting assets, rights, and commercial interests in the late Bob Marley, had granted Zion an exclusive license to design, manufacture, and sell t-shirts and other merchandise bearing Marley’s image. In affirming the lower court’s decision, the appellate court determined that there was sufficient evidence to support the jury’s finding concerning whether the plaintiffs sponsored or approved the defendants’ Marley products.

The questions presented in A.V.E.L.A.’s petition were: (1) Does Lanham Act § 43(a) protect a deceased celebrity’s persona-successor without it showing that the celebrity’s persona acquired secondary meaning so that it identifies the persona-successor as the source of sponsorship or approval? (2) Does a Plaintiff satisfy 43(a)’s “consumer confusion” requirement even without evidence that its sponsorship or approval would have any consequence to purchasers?

Attorneys: Michael R. Adele (Technology Litigation Center) for A.V.E.L.A., Inc.

Companies: A.V.E.L.A., Inc.; X One X Movie Archive, Inc.; Fifty-Six Hope Road Music, Ltd.; Zion Rootswear, LLC

News: Advertising