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    Elements to Prove Defenses

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    TCOs F & G. Laura Etheridge and Rita O'Donnell, the CEO and Creative Director of Clean Clothes (a Texas based lesbian women's clothing line) brainstormed together and came up with a tagline for their new slacks line: "Masculine Attitude, Feminine Fit." They market the product on YouTube, Twitter, and Face Book showcasing their "Funky Femme" slacks collection, made from a material which resembles alpaca wool, but is actually organic cotton. To further the advertising impact, the team uses an Ellen DeGeneres look-alike in the YouTube video, where the model does the "Ellen dance" - and mouths "love the pants" as she points to her legs and then walks off leading an Alpaca by a halter. Within months, the slacks are a huge hit in the lesbian community. Clean Clothes sends a letter to their attorney asking him to trademark their tagline, and move forward without another thought about it.
    Meanwhile, Men2Wimmin, a French company with a branch in New York, has established a huge following in the gay and cross-dressing community. It has used the tagline "Feminine Attitude, Masculine Fit" for many years to advertise their drag queen dress collection for men on billboards, the internet and television.
    Ellen DeGeneres learns that her likeness is being used to advertise for Clean Clothes. She watches the ad and is incensed. She spends the next week on her show bashing the Clean Clothes company, and states that she would never endorse the use of Alpaca wool for clothing, as she feels shearing them is cruel. (She doesn't catch that the pants are really made from cotton.) Further, she says she feels that lesbian women should not need to shop at special stores, although she admits she often shops in the men's department at Joseph A. Bank (JOSB). Her comments cause a precipitous drop in sales at both Joseph A. Bank (JOSB) and Clean Clothes. Using the above fact pattern, analyze fully, the following questions:


    1. TCO F. Ellen DeGeneres sues Clean Clothes for Misappropriation and Right of Publicity for the use of a look-alike model for the slacks advertisement. Clean Clothes countersues for product disparagement. Joseph A. Bank (JOSB) sues Ellen for impacting their men's clothing sales with her unsolicited comment. Analyze the case for all three parties - who will win and why; what elements will they need to prove, and what defenses can they show?

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    Solution Preview

    The three parties involved in this business matter are Ellen DeGeneres, Clean Clothes Company and Joseph A. Bank clothing store. Ellen DeGeneres is suing Clean Clothes Company for using her likeness and dance in a commercial video without her permission. The law that Ellen is presented in the court is misappropriation and right of publicity against the Clean Clothes Company. The Clean Clothes Company is countersuing Ellen DeGeneres for product disparagement. While Joseph A. Banks, is suing Ellen DeGeneres for the reduction of sales on clothes because of an unsolicited comment on her show.
    The law of misappropriation means that it is also considered tortious for a business to appropriate the name or likeness of a famous individual for commercial advantage. All individuals are vested with an exclusive property right in their identity. No person, business, or other entity may appropriate an individual's name or likeness without permission. Despite the existence of this common law tort, businesses occasionally affiliate their products with popular celebrities without first obtaining consent. Although movie stars and televisions actors can lend prestige to the goods and services they promote, a business which falsely suggests that a celebrity has sponsored or endorsed one of its products will be held liable for money damages in amount equal to the economic gain derived from the wrongful appropriation (.wwwuslegal.com)
    And the law of the right of publicity means Right of publicity means the right of an ...

    Solution Summary

    The elements to prove defenses are examined.