Monday, October 12, 2009

Unspecified American Beer Commercial = False Endorsement?*

Recently, I was watching football on television on a nice, crisp Sunday morning. By crisp, I mean it was fricking freezing, but I digress.

A commercial appeared on my television, in which a spokesperson wore a blue shirt with khakis and proceeded to sell a (presumably) fake product endorsing a particular unspecified American beer. These commercials usually combined two or more things that are common at a tailgating party into ridiculous and clearly unusable or unworkable products. What caught my attention was the "spokesperson." He was dressed very similarly to a recently deceased infomercial spokersperson, Mr. Billy Mays. Indeed, even this spokesman's style was reminiscent of Mr. Mays (i.e., a lot of shouting and hyperactivity).

The area of law known as the right of publicity and false endorsement is an interesting one. Some people wish it would just go away, and others support it. Nonetheless, there's always the question of what is permissible and what is not, particularly in the context of a deceased celebrity. Unfortunately for most intellectual property types, the right of publicity is an animal of state law (depending on where the person is domiciled) and false endorsement falls under the Lanham Act's purview.

Personally, I highly doubt there's a true legal issue with this television commercial, but it did spark my interest. The commercial is enough of both a parody and I sense an 'homage' of Mr. Mays that even if the estate wished to challenge it, there would likely be a short and swift end to it (either settlement to avoid negative publicity or a summary judgment).

*Solely Editorial Material

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