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.'”
A West Palm Beach strip club is being sued by Marilyn’s estate for copyright infringement, reports the Sun-Sentinel:
“Marilyn Monroe may have been the most prominent sex symbol of the last century, but her image cannot be used to promote a highbrow West Palm Beach strip club, her estate argued in a federal lawsuit filed last week.
Monroe’s of Palm Beach is infringing on the late actress’ trademark by using her name and image in its signs, its Twitter account and its very name, according to the lawsuit filed by the estate of Marilyn Monroe, which is based in New York.
Until recently, some of its fliers featured a silhouette reminiscent of the iconic scene from The Seven Year Itch in which Monroe’s skirt is blown from a blast of air coming from a subway vent.
A manager at the West Palm Beach club, who identified himself only as John, said the business has stopped using the skirt silhouette, but denied the club is trying to profit from the memory of Marilyn Monroe. The club uses images of numerous 1950s stars, including Lana Turner, Bettie Page and the Rat Pack, he said.
‘Monroe,’ he said, was the name of the club owner’s cat, and the name was chosen in jest as a challenge to Rachel’s, a rival strip club believed to be named after its owner’s cat.”
Marijane Gray, who has written several articles about Marilyn, was interviewed by Elisa Jordan for The Examinerrecently, and spoke out about ABG and Facebook’s treatment on Monroe’s fans – and in particular, the mass deletion of non-profit tribute pages.
“It would do a lot to restore public opinion of them if they admitted they were wrong about what constitutes a copyright violation and left the non-commercial tribute pages in peace. There are enough people out there selling fake autographs, fake memorabilia, putting Marilyn’s face on cheap junk … go after them, not the people who want to look at photos or have a chat about her.”