MANHATTAN (CN) – “This is the case of The Naked Cowboy versus The Blue M&M,” a federal judge wrote in allowing The Naked Cowboy’s lawsuit against Mars candy and Chute Gerdeman ad agency to proceed. “Plaintiff Robert Burck is a ‘street entertainer’ who performs in New York City’s Times Square, wearing only a white cowboy hat, cowboy boots, and underpants, and carrying a guitar strategically placed to give the illusion of nudity.” He claims Mars & Chute Gerdeman based a Times Square billboard ad on his character, “featuring a blue M&M dressed ‘exactly like The Naked Cowboy,’ wearing only a white cowboy hat, cowboy boots, and underpants, and carrying a guitar.”
U.S. District Judge Denny Chin kindly attached photos of the two characters at the top of his ruling.
Burck, who has registered The Naked Cowboy as a trademark, claims defendants’ animated cartoon ad on two enormous billboards in Times Square violated his trademark and his right to publicity.
Chin dismissed the trademark complaint, finding that New York law “protects the name, portrait, or picture of a ‘living person,’ not a character created or a role performed by a living person. Burck may proceed, however, with his false endorsement claim, for he plausibly alleges that consumers seeing defendants’ advertisement would conclude – incorrectly – that he endorsed M&M candy.”