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The Lanham Act's (Act), 15 U.S.C.S. § 1125(a), prohibitions apply to misleading statements that a product or service has been endorsed by a public figure. A false representation, whether express or implied, that a product was authorized or approved by a particular person is actionable under the Act. Liability attaches not just for descriptions that are literally false, but for those that create a false impression. The plaintiff is not required to prove actual palming off. A showing of the likelihood of consumer confusion as to the source of the goods is sufficient. Finally, a showing of actual consumer deception is not required in order to justify injunctive relief under the Act, so long as a tendency to deceive is demonstrated.
Plaintiff Woody Allen, a film director, writer, actor, and comedian, sued over an advertisement for defendant National Video, Inc., in which the impersonator, masquerading as the celebrity, portrayed that he was a satisfied holder of National’s movie rental V.I.P. Card. The plaintiff asserted that the ad appropriated his face, implied his endorsement, and thus, violated his statutory right to privacy, his right to publicity, and the prohibition of misleading advertising under Lanham Act, (Lanham), 15 U.S.C.S. § 1125(a). The impersonator sought indemnification and damages against National Video for the violation of his privacy rights and contract breach for the use of his image without a disclaimer. The impersonator moved for summary judgment against defendant company for indemnification, the violation of his privacy rights, and breach of contract.
The court granted an injunction and summary judgment to the celebrity on his Lanham claim for unfair competition because the advertisements in question created at least a likelihood of consumer confusion as to whether the celebrity endorsed the company. According to the court, a celebrity has a similar commercial investment in the drawing power of his or her name and face in endorsing products and in marketing a career. The celebrity's investment depended upon the good will of the public, and infringement of the celebrity's rights also implicated the public's interest in being free from deception when it relied on a public figure's endorsement in an advertisement. The underlying purposes of the Lanham Act, 15 U.S.C.S. § 1125(a), therefore appeared to be implicated in cases of misrepresentations regarding the endorsement of goods and services. Anent the second issue, the court granted summary to the impersonator's privacy and breach of contract claims against the company. The court noted that the right to privacy recognized by the Civil Rights law has been strictly construed, both because it was in derogation of New York common law and because of potential conflict with the U.S. Const. amend. I, particularly where public figures were involved.