Trademark Law | Expert Legal Commentary
September 3, 2008
Burck v. Mars: The Naked Cowboy Shall Ride On
Burck v. Mars, Inc.
By
Jeffrey J. Zuber of Zuber & Taillieu and D. Dennis La
Robert Burck, a.k.a. The Naked Cowboy, an iconic street performer in Times Square, had the foresight to trademark his name and image. When the Mars company developed an ad campaign depicting its famous M&M candies in and around New York City, they chose to dress up one of the candies as The Naked Cowboy, although they failed to seek or obtain his permission first. Burck sued for trademark infringement, claiming false endorsement; Mars claimed fair use as a parody. Even though that big blue M&M looked nothing like Robert Burck, the M&M’s outfit, setting, and potential for consumer confusion was enough. On motions to dismiss, a federal court in New York decided that Burck’s false endorsement claims could proceed to the factfinder, as could Mars’ defense of parody. Burck v. Mars, Inc., ___ F. Supp. 2d ___, 2008 WL 2485524, No. 08 Civ. 1330 (DC), (S.D.N.Y. 2008).
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About the Author
Jeffrey J. Zuber is a Partner of Zuber & Taillieu, focusing on intellectual property litigation and arbitration.
Image Credit: ©iStockphoto.com/Terraxplorer
