Marilyn Monroe Trademark Spat Advances in NY

MANHATTAN (CN) — Two years shy of a legal “Seven Year Itch,” a federal judge found, a nostalgia-merchandising company has time to scratch around for information about Marilyn Monroe’s trademarks.

Five years have passed since California-based AVELA brought a legal challenge to Marilyn Monroe’s trademarks. The company’s name is short for Art & Vintage Entertainment Licensing Agency.

Two countersuits later, U.S. District Judge Katherine Polk Failla in Manhattan marveled at the litigation’s expansion.

“What began in 2012 as a declaratory judgment action has transmogrified into a sprawling conflict raising issues of trademark, antitrust, and state business law,” the 51-page opinion states. “And at the center of this controversy is one of the most iconic entertainers of the 20th century: Marilyn Monroe.”

Having allowed the Monroe Estate to pursue its claims in September, Judge Failla turned her attention to two of AVELA’s licensing agents: X One X Archives and V. International Fine Arts Publishing.

“Now, the shoe is on the other foot,” she noted.

The Estate of Marilyn Monroe has vigorously defended its copyrights, appearing as a party in at least nine cases on the Courthouse News database and as a plaintiff in four of them.

Forbes ranked the actress born Norma Jean Mortenson third among the “The 15 Top-Earning Dead Celebrities” in 2011, one year before the Ninth Circuit weakened the estate’s claim on the icon’s trademarks.

In that ruling, the California-based federal appeals court found that Monroe’s estate could not take advantage of California’s laws regarding publicity rights because the actress had been domiciled in New York at the time her death.

Judge Failla noted that the litigation in New York goes to the heart of the estate’s very identity.

“Indeed, even the Monroe Estate’s full name — ‘Estate of Marilyn Monroe, LLC’ — is alleged to be a misleading contrivance, given that this entity is not in fact Monroe’s estate,” the opinion states.

X One X and V. International describe the trademarks as “strategic litigation tools” to assert control over “Monroe’s image, likeness, and name in commerce.”

Though skeptical of these claims, Judge Failla found that the merchandisers’ allegations have just enough substance to move onto discovery.

“To be clear, the court harbors serious doubts that V. International will be able to establish that the contested marks are generic,” she wrote. “Reaching that conclusion at this stage, however, would be premature.”

Attorneys for the estate and the merchandisers did not respond to email requests for comment.