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ETW Corp. v. Jireh Publ'g, Inc. - 332 F.3d 915 (6th Cir. 2003)


Courts have recognized false endorsement claims under § 43(a) (15 U.S.C.S. § 1125(a)) of the Lanham Act where a celebrity's image or persona is used in association with a product so as to imply that the celebrity endorses the product. False endorsement occurs when a celebrity's identity is connected with a product or service in such a way that consumers are likely to be misled about the celebrity's sponsorship or approval of the product or service. 


A licensing agent sued a publisher for trademark infringement. The licensing agent claimed that the artist's prints constituted unauthorized use of a registered trademark in violation of the Lanham Act and Ohio law. The District Court granted summary judgment to the publisher and dismissed the case. The licensing agent appealed to the United States Court of Appeals.


Was the court dismissal proper?




The court held that the district court properly granted summary judgment on the agent's claim for violation of its registered mark on the grounds that the claim was barred by the fair use defense. The court then addressed trademark claims under the Lanham Act based on the unauthorized use of the famous golfer's likeness. The court held that, as a general rule, a person's image or likeness could not function as a trademark. Third, it addressed Lanham Act claims of unfair competition and false advertising in the nature of false endorsement, and a claim for infringement of the right of publicity under Ohio law. As to the Lanham Act false endorsement claim, the court held that the Lanham Act should be applied to artistic works only where the public interest in avoiding confusion outweighed the public interest in free expression, and the Act did not apply to the artist's work. The work also did not violate the golfer's Ohio law right of publicity. 

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