Legally Blonde: ‘Is Marilyn Too Generic?’

Marilyn by John Florea, 1953

The ongoing legal battle between Marilyn’s estate and nostalgia brand AVELA (previously reported here) has raised an interesting paradox. As Eriq Gardner writes for the Hollywood Reporter, U.S. District Court Judge Katherine Polk Failla rejected the claim that Marilyn’s estate had ‘monopolised’ her image, but allowed the possibility that MM is ‘too generic’ for copyright protection.

“Upon the argument that ‘Marilyn Monroe’ only reminded consumers of a famous historical figure, the Estate argued that such a proposition was tantamount to a per se ‘rule that names of identifiable individuals are…non-distinctive, contrary to existing law.’

Failla, though, responded that the question of whether a mark has become genericized is a factual one, meaning that it’s inappropriate for an early decision. Both sides will have an opportunity to test the facts — perhaps by taking surveys of whether consumers really associate ‘Marilyn Monroe’ with the Estate.

The judge again stresses the early posture of the case (despite the fact that the complicated case is in its third year), and the Marilyn Monroe Estate at least defeats a claim that it committed fraud upon the U.S. Patent & Trademark Office, but she’s at least allowing defendants to attack the notion that the Estate enjoys broad trademark rights to ‘Marilyn Monroe.'”