(CN) – Paris Hilton won a round in her lawsuit against Hallmark over its use of her image and catchphrase, “that’s hot,” in a birthday card. The 9th Circuit on Monday rejected the card maker’s bid to have the case dismissed on the ground that the lawsuit was meant to chill speech that merely spoofed the hotel heiress’ public persona.
The card contained an oversized photograph of Hilton’s head superimposed on a cartoon waitress’ body, with the caption “Paris’s First Day as a Waitress.” The cartoon Hilton tells a customer, “Don’t touch that, it’s hot.” The customer replies, “What’s hot?” and Hilton answers, “That’s hot.” The inside of the card reads, “Have a smokin’ hot birthday.”
Hilton claimed Hallmark had lifted the concept from her reality television show, “The Simple Life,” in which she and friend Nicole Ritchie, who had a similarly privileged upbringing, do things an average person might do, such as work at a fast-food restaurant.
She sued Hallmark for misappropriation of publicity, false designation and trademark infringement. U.S. District Judge Percy Anderson in Los Angeles allowed her to proceed on all but the trademark claim, a decision Hallmark appealed.
Hallmark also moved to strike the right of publicity claim as a strategic lawsuit against public participation, or SLAPP.
The three-judge panel in Pasadena ruled for Hilton on both the appeal and the anti-SLAPP motion to strike.
The judges agreed with Hallmark that the card qualifies as protected speech on an “issue of public interest” – namely, Hilton’s celebrity. However, they said California’s anti-SLAPP statute doesn’t bar Hilton from suing over such speech if she can present a “legally sufficient claim.”
Hallmark didn’t question whether Hilton could meet this minimal requirement, but instead asserted two defenses for why the card didn’t violate Hilton’s publicity rights: it constituted “transformative use,” and it concerned a matter of “public interest.”
But the appellate panel said it can’t strike the claim based on the transformative-use defense, because Hilton “has at least some probability of prevailing on the merits” at trial. And the public interest defense doesn’t apply, the court ruled, because the birthday card doesn’t publish or report newsworthy information.
The court rejected Hallmark’s appeal, affirmed denial of its motion to strike, and sent the case back to federal court in Los Angeles.