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Carson v. Here's Johnny Portable Toilets, Inc. - 698 F.2d 831 (6th Cir. 1983)


The test for equitable relief under § 43(a) of the Lanham Act, 15 U.S.C.S. § 1125(a), is the "likelihood of confusion" standard. The courts have approved the balancing of several factors in determining whether a likelihood of confusion exists among consumers of goods involved in a § 43(a) action. Those factors include: 1. strength of the plaintiff's mark; 2. relatedness of the goods; 3. similarity of the marks; 4. evidence of actual confusion; 5. marketing channels used; 6. likely degree of purchaser care; 7. defendant's intent in selecting the mark; 8. likelihood of expansion of the product lines. 


Plaintiff Johnny Carson is the host and star of "The Tonight Show," a well-known television program. From the time he began hosting "The Tonight Show," he has been introduced on the show each night with the phrase "Here's Johnny." The phrase "Here's Johnny" is generally associated with Carson by a substantial segment of the television audience. Defendant, Here's Johnny Portable Toilets, Inc., is engaged in the business of renting and selling "Here's Johnny" portable toilets. Defendant's founder was aware at the time he formed the corporation that "Here's Johnny" was the introductory slogan for Carson on "The Tonight Show."   Shortly after defendant went into business in 1976, plaintiff brought this action alleging unfair competition, trademark infringement under federal and state law, and invasion of privacy and publicity rights. They sought damages and an injunction prohibiting any further use of the phrase "Here's Johnny" as a corporate name or in connection with the sale or rental of its portable toilets. The Court of Appeals for the Sixth Circuit vacated the district court's judgment dismissing the complaint  and remanded;  although there was no likelihood of confusion or invasion of Carson's privacy right, his right of publicity was invaded because his identity was intentionally appropriated for commercial purposes.


Was there unfair competition on the part of defendant? Did defendant violate plaintiff’s right of publicity?


(a) No. (b). Yes


The court noted that the test for relief under the Act and Michigan common law for unfair competition was the likelihood of confusion standard. The court found that plaintiff failed to establish a likelihood of confusion. Further, the court ruled that plaintiffs claim that his right of privacy had been invaded was not supported by the law or the facts. However, the court held that plaintiffs right of publicity was violated since a celebrity had a protected pecuniary interest in the commercial exploitation of his identity and that if the celebrity's identity was commercially exploited, there had been an invasion of his right whether or not his name or likeness was used. The district court's conception of the right of publicity is too narrow. The right of publicityis that a celebrity has a protected pecuniary interest in the commercial exploitation of his identity. If the celebrity's identity is commercially exploited, there has been an invasion of his right whether or not his "name or likeness" is used. Carson's identity may be exploited even if his name, John W. Carson, or his picture is not used.

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