Comments on: “The Naked Cowboy versus The Blue M&M”

By: Naked Cowboy vs. Mars suit settles

Naked Cowboy vs. Mars suit settles — Tue, 11 Nov 2008 20:09:23 +0000

[…] Ron Coleman has the report. We covered the case in June. […]

By: Richard Nieporent

Richard Nieporent — Thu, 26 Jun 2008 23:50:42 +0000

Thanks for the response Paul and Betsy. I guess I don’t get out often enough. Who knew that the naked cowboy was a “major corporation”? All this time I though he was just one step above one of those 42 Street winos. Now I understand why he filed this lawsuit. What I still don’t understand is why anyone would want to use him for an endorsement of a product. I grew up in New York City and there were no shortage of naked guys running around. Of course they had on raincoats as apposed to a cowboy hat and boots.

By: Betsy Daidson

Betsy Daidson — Thu, 26 Jun 2008 17:54:52 +0000

Paul,

Very well put and clearly defined … additionally, Naked Cowboy’s character/persona was used by Activision in the HUGELY popular video game; “True Crime: New York City” in 2005…

By: Betsy Daidson

Betsy Daidson — Thu, 26 Jun 2008 17:46:20 +0000

Mr. Nieporent,

You are missing the facts that Naked Cowboy has done many corporate endorsements and licenses prior to Mars using his persona including Chevrolet, Pepsi (only diet for him thank you) & Ford to name a few. Mars chose to use Naked Cowboy because of his iconic status along with King Kong, Marilyn Monroe & The Statue of Liberty… He didn’t need Mars to make him famous … Mars needed him to draw attention to their commercial conquest.

By: Paul

Paul — Thu, 26 Jun 2008 17:37:37 +0000

Richard, if Microsoft began putting the Apple logo on all its products, could it argue that Apple should have no complaints because it’s just getting free publicity?

To answer your actual question, the problem isn’t just one about publicity, it’s about the fact that by using his bit without permission they deprived him of the ability to negotiate an endorsement. Not all of his business is about whether nor not people drop by in Times Square.

Tons of legit businesses make money by lending their distinction to others. The Aerosmith version of Guitar Hero, the Madden football video games…hell, the product endorsement of Slim Jims by “The Macho Man” may all seem silly, but why should M&M just be allowed to take this very distinctive trademark and use it as their own just because it’ll give it more publicity? And what’s the real argument that it would actually GAIN more publicity? The whole point of the ad was to call attention to recognizably New York features, they must have thought that #1 people would actually recognize the cowboy act and #2 that it would please people enough to see it that they would make more money through sales. I own a businesses where I sell clothing. If I began slapping other people’s trademarks on my ads, I’d expect to be sued, and I doubt anyone would defend me on the grounds that I’m just giving out publicity. Why should the Cowboy’s business be treated any differently?

By: george

george — Thu, 26 Jun 2008 14:31:03 +0000

Morbidly speaking, M&M’s probably should have hired a crazy cab driver to run over the guy in Times Square – NY has no postmortem right of publicity.

By: Richard Nieporent

Richard Nieporent — Thu, 26 Jun 2008 13:04:14 +0000

Other than the chance to make a quick buck from a lawsuit, what am I missing here? I would have though that all of this free publicity would be something desirable for the “naked cowboy”. Certainly he is not going to loose business because people will say that since they had already seen the naked M&M they no longer want to see his act. The fact that many more people will know of him now should only help him get more business. For example, “the real Kramer” used the publicity he got from the Seinfeld show to make his living. Rather than consulting a lawyer, Mr. Burck should have spoken to a publicist.

By: Ron Coleman

Ron Coleman — Thu, 26 Jun 2008 04:08:19 +0000

Have any of you no understanding of the point of Trademark? Do we all understand that this Naked Cowboy “Trades” his likeness and imagery for income?

That is a classic!

But Betsy — his name isn’t Mark!

By: pennywit

pennywit — Thu, 26 Jun 2008 02:15:01 +0000

As stupid as standing in your skivvies and strumming a guitar might sound, fact is, Burck thought of it … and you didn’t. Kind of makes me ponder my own career choices …

–|PW|–

By: Betsy Daidson

Betsy Daidson — Thu, 26 Jun 2008 01:10:11 +0000

Have any of you no understanding of the point of Trademark? Do we all understand that this Naked Cowboy “Trades” his likeness and imagery for income? The Naked Cowboy followed the federal law and Trademarked his likeness and image over 10 years ago with the intent of licensing the use of his celebrity status for commercial purposes and Mars used his persona without permission or authorization. The parody defense is absurd in my opinion and is going to fail. Mr. Burck can easily prove that Mars has caused people to falsely assume that he endorsed their products and the jury will rule in his favor that Mars’ use of his persona is an infringement of his Trademark. I also suspect that we will see significant damages in this case because it is clearly an abuse by a major corporation upon a law abiding citizen. A definitive David & Goliath victory in my estimation.