You’ll be happy to know that the $6 million lawsuit filed by the New York City street performer known as Naked Cowboy against M&Ms candy maker Mars Inc can go forward on grounds of trademark infringement, a judge ruled on Monday.
Photo: Getty Images, nypost.com
Robert Burck — a fixture in Times Square for ten years, strumming his white guitar while dressed only in white cowboy boots and hat and tightie-whities — filed the suit in February over video billboards depicting a blue M&M dressed in his signature outfit. A U.S. District Court Judge denied a motion to dismiss the lawsuit, ruling that Burck may proceed with his false endorsement claim, “for he plausibly alleges that consumers seeing defendants’ advertisements would conclude — incorrectly — that he had endorsed M&M candy.”
Burck, who poses for photos with giggling tourists in return for dollars slipped into his boots, has trademarked his look and licensed his name and likeness to companies for endorsements and advertisements, including a Chevrolet commercial that appeared during a Super Bowl, the suit says. Read more…
Makes you wonder what Mars, and Chute Gerdeman Inc, their ad agency, were thinking. Still, it will be an uphill battle for the cowboy against Mars. Trademark laws seem to exist for big companies while little guys rarely get equal treatment. For example, in this case, the judge basically threw out Burck’s claim that his registered trademark had been infringed, saying that he might have a shot at claiming the M&M ad implied an endorsement, a foot in the door but a significantly diminished position.
But imagine if the roles were reversed. What if the cowboy had donned an M&M suit? Mars would have crushed him in court like a souvenir penny. And what if Mars had had their M&M wearing a Coke outfit? I rest my case. Trademark law offers an uneven — and unfair — playing field.
But good luck, Naked Cowboy. I hope, at the very least, you win a hefty endorsement fee.