NEWARK, N.J. (CN) - In its motion to dismiss a Fox News anchor's lawsuit, Hasbro insists that its hamster toy looks nothing like the reporter who shares its name.
Harris Faulkner went to court last month over a toy in the "Littlest Pet Shop" product line that makes "prominent and unauthorized use of [her] name."
Contending that elements of the hamster toy "bear a physical resemblance" to her, Harris enumerated "in particular [the] tone of its complexion, the shape of its eyes, and the design of its eye makeup."
Hasbro describes its Littlest Pet shop brand as "a fictional world comprising hundreds of miniature, cartoon-like animals made for children ages four and up."
Faulkner, a six-time Emmy award winner who anchors the network's "Fox Report Weekend" show, said she never gave permission for Hasbro to use her name or likeness on the toy, and that Hasbro has ignored her requests that it cease selling it. She is seeking $5 million in damages from the company.
In an Oct. 26 motion to dismiss, Hasbro argues that "while Ms. Faulkner alleges that she and the Hamster Toy share the same name ... that allegation is not enough."
"The mere use of a real person's name for a fictional character is not actionable as a right of publicity claim absent additional evidence that the unique identity of that person has been misappropriated," the motion states (emphasis in original).
Hasbro also notes that "while Ms. Faulkner contends that the Hamster Toy misappropriated her appearance as well, a comparison of the miniature hamster toy and the human Ms. Faulkner reveals that the allegation is implausible on its face."
"No reasonable fact-finder could conclude that the two bear any resemblance to one another," the toymaker added.
The motion incorporates several visual aids, including a side-by-side comparison of the toy and real-life Harris Faulker.
"Ms. Faulkner is an adult, African-American, human, female newscaster; the Hamster Toy is an inch-tall, cartoon-like plastic animal, which has no apparent gender or profession, or even clothing that might identify its gender or profession," the motion states.
Hasbro concludes that "no one could possibly identify the fictional Hamster Toy with Ms. Faulkner based on their appearance."
Hasbro also claims that, "contrary to plaintiff's allegation, the Hamster Toy does not have the same 'complexion' as Ms. Faulkner."
"The animal depicted by the Hamster Toy has 'fur' (not skin), which is golden yellow, a wisp of 'hair' that is medium-brown, a pink nose, and a muzzle that is white," the motion states.
Hasbro says "no reasonable viewer of the Hamster Toy could conclude that its animal fur coloring bears any resemblance to Ms. Faulkner's human skin complexion."
"Similarly, there also is nothing unique about the 'shape' of Ms. Faulkner's eyes, or the 'design' of her eye makeup that somehow identifies the Hamster Toy with her appearance," Hasbro added.
The company concludes that "Ms. Faulkner's world of Fox News is so completely at odds with the Hamster Toy's imaginary world of Littlest Pet Shop that the court should treat the stark contextual difference as a 'minus' factor warranting dismissal."
As precedent, Hasbro points to Botts v. New York Times Co. It said "courts and commentators analyzing right of publicity claims universally recognize that to establish that one's right of publicity has been violated, a plaintiff must show that the defendant "pass[es] himself off as the plaintiff or otherwise seek[s] to obtain for himself the values or benefits of the plaintiff's name or identity."
Courts have also "long explained that the right of publicity is intended 'to protect the property interest that an individual gains and enjoys in his identity through his or her labor and effort,'" Hasbro added. "Thus, while a violation of the right of publicity occurs when '[o]ne who appropriates to his own use or benefit the name or likeness of another,' the misappropriation is only actionable insofar as it trades on the person's identity."
Hasbro urged the court to reject Ms. Faulkner's "opinion that the inch-tall hamster toy bears Ms. Faulkner's resemblance," saying it must "instead must conduct its own comparison to determine whether the allegations are plausible as a matter of law."
Hasbro declined to comment additionally on the motion, citing a company policy of not commenting on pending litigation.
The company is represented by Beth Goldman with Frankfurt, Kurnit, Klein & Selz in Manhattan.
Hasbro no longer makes or sells the toy version of Harris Faulkner, and the item is not listed on the toymaker's website, but many third-party vendors such as Amazon do have the product available to buy.
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