September 05, 2005
Rappers, Car Dealer Ads, and Expansive Interpretations of Trademark Law
By Eric Goldman
Broadus v. Gary Barbera Enterprises, Inc. (E.D. Pa. complaint filed Aug. 2005).
Ten days ago I blogged about the rapper 50 Cent's lawsuit against the Gary Barbera dealership for running a car ad that showed a picture of 50 Cent with the phrase "Just Like 50 Says." Assuming the dealership ran the ad without permission, this use looked like a textbook misappropriation of publicity rights.
However, the trademark implications were more troubling: 50 Cent does not have a trademark in his likeness but has a registered trademark in "50 Cent." Could we combine the picture plus the trademark to cover the number "50"? Perhaps, although this takes trademark law pretty far.
We get to revisit this issue with the same dealership. On the heels of the 50 Cent fracas, the Gary Barbera dealer ran two ads:
* the first shows a picture of the rapper Snoop Dogg next to the phrase "Is Bar-Bizzle the Sh-izzle? Boy I Gu-izzle."
* the second again shows the picture and uses the phrase, but adds "If the car is fly...then you must buy."
In his complaint, Broadus/Snoop says that he has a registered trademark in the phrase "Snoop Dogg." However, the dealer never used this phrase. Instead, the complaint contends that the dealer used "the distinct speech pattern employed by Broadus and associated with his professional likeness and persona and the SNOOP DOGG trademark" (Para. 12). The complaint goes on further to say that the dealer misappropriated his "speech pattern" and "distinctive manner of speech."
Let's start with the right of publicity. If the dealer does not have permission, then they have misappropriated his right of publicity by using the photo. The problem is that Snoop Dogg made a commercial for Chrysler. Presumably he granted publicity rights to Chrysler as part of that deal. The question is--does the agreement between the dealer and Chrysler sublicense those rights? If yes, then Snoop Dogg has no lawsuit. If not, the dealer is in trouble.
While the right of publicity claims seem relatively straightforward, the trademark claims are far more problematic. Unlike the 50 Cent case, where the dealer at least part of the registered trademark ("50" of the trademark "50 Cent"), here the dealer did not use any part of the registered trademark ("Snoop Dogg").
So how did the dealer infringe Snoop Dogg's trademark rights? Snoop Dogg could have trademark rights in his identity, but the portion of the complaint on the Smoking Gun site made no such allegations, and I doubt that would stick.
The dealer allegedly took his distinctive speech style of using "-izzles," although I'm inferring that Snoop Dogg never actually said "Is Bar-Bizzle the Sh-izzle? Boy I Gu-izzle" (and even if he said it, there's a big gap between saying the phrase and having a trademark in the phrase). So how can he have a trademark in the speech pattern of using "-izzles" in nonsense phrases? I would vote that he simply cannot do so. Trademark law doesn't cover speech patterns, nor could it without reaching too deeply into human communication patterns.
Apparently, Snoop Dogg did say "If the car is fly...then you must buy" in the Chrysler ads. As a result, I don't see how Snoop Dogg can enforce any rights in that phrase; the trademark rights should accrue to Chrysler. In turn, the dealer's rights also depend on the contract between the dealer and Chrysler.
So where is the dealer's trademark use/infringement of a trademark right owned by Snoop Dogg? The photo + nonsense phrases of "-izzle" = trademark infringement of the trademark "Snoop Dogg"? I don't think this is enough to support a trademark infringement claim. Snoop Dogg should win only on the right of publicity claim (or not at all).
In any case, although trademark law may not apply to its behavior, I have a tip for the Gary Barbera dealership: lay off using photos of rappers in your ads for a while. They seem to get you into trouble...and into court!
Meanwhile, an update on an unrelated but also overreaching trademark dispute. The LA Times runs a good story about the "What happens here stays here"/"What happens in Vegas stays in Vegas" trademark dispute. While this particular phrase could conceivably infringe, in my previous blog post I reference how the trademark owner is trying to protect too many variations of that phrase.