Sep 9, 2015

Hamsters, Fox and Mistaken Identity - Celebrity Endorsements

The case of Harris Faulkner v Hasbro, 2:15-cv-06518 provides an interesting insight into the world of celebrity endorsement in the US.

Background

Harris Faulkner, a Fox News anchor, is suing toy company Hasbro for false endorsement, unfair competition, and violation of her right to publicity.  She is claiming that Hasbro used her likeness without authorisation to create a "Harris Faulkner" toy hamster, which is part of Hasbro's "Littlest Pet Shop" line.

In the complaint Ms Faulkner makes a rather bizarre claim that the toy "is extremely concerning and distressing to [Plaintiff]." as the toy is labeled a choking hazard, and this made Ms Faulkner "extremely distressed [as] her name has been wrongly associated with a plastic toy that is a known choking hazard that risks harming small children."

In addition, and perhaps more understandable, are the claim that "Hasbro's portrayal of Faulkner as a rodent is demeaning and insulting." and that as a journalist she cannot and does not endorse commercial products.

Laws of New Jersey

New Jersey has a common law right of publicity which was first recognised in 1907.  This is the date of the Edison v. Edison Polyform Mfg. Co., in which Thomas Edison successfully claimed that defendant could not use "Edison Polyform" as the name of a painkiller he manufactured.  In this case the Defendant had bought the painkiller formula created by Thomas Edison however, he had not followed original formula to the letter, and also used Thomas Edison's image in its advertising, thus creating the false impression that the inventor endorsed the product.

Clearly Ms Faulkner could claim that Hasbro used her name without authorisation, however, she would need to prove that Hasbro meant to use her name, not a generic Harris Faulkner. The complaint claims that Ms Faulkner is "uniquely named" but 'Faulkner' is also the name of a famous writer and Harris is a relatively common name.

To defend the complaint Hasbro would need to explain why it chose this particular name for its toy and that it was in no way linked to Ms Faulkner.

In New Jersey imitating a person is also considered to be a right of publicity violation and so, Ms Faulkner could argue that the toy imitates her.  To do this she would have to convince the court that the toy bears at least some resemblance to her.

The complaint states that the toy "bear[s] a physical resemblance to [Plaintiff]'s traditional professional appearance, in particular the tone of its complexion, the shape of its eyes, and the design of its eye makeup."  You can make your mind up by looking at the toy and a picture of Ms Faulkner below (picture taken from an article in The Independent Newspaper here).

Damages/Remedy

In terms of damage Ms Faulkner asking for $5,000,000 in damages along with an injunction, an account of profits, any unjust enrichment and costs.

Posted by: in: Case Law, News

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