Laura Etheridge and Rita O’Donnell, the CEO
and Creative Director of Clean Clothes (a Texas based lesbian women’s clothing
line) brainstormed together and came up with a tagline for their new slacks
line: “Masculine Attitude, Feminine Fit.” They market the product on YouTube,
Twitter, and Face Book showcasing their “Funky Femme” slacks collection, made
from a material which resembles alpaca wool, but is actually organic cotton. To
further the advertising impact, the team uses an Ellen DeGeneres look-alike in
the YouTube video, where the model does the “Ellen dance” – and mouths “love
the pants” as she points to her legs and then walks off leading an Alpaca by a
halter. Within months, the slacks are a huge hit in the lesbian community.
Clean Clothes sends a letter to their attorney asking him to trademark their
tagline, and move forward without another thought about it. Meanwhile,
Men2Wimmin, a French company with a branch in New York, has established a huge
following in the gay and cross-dressing community. It has used the tagline
“Feminine Attitude, Masculine Fit” for many years to advertise their drag queen
dress collection for men on billboards, the internet and television.
Ellen DeGeneres learns that her likeness is
being used to advertise for Clean Clothes. She watches the ad and is incensed.
She spends the next week on her show bashing the Clean Clothes company, and
states that she would never endorse the use of Alpaca wool for clothing, as she
feels shearing them is cruel.(She doesn’t catch that the pants are really made
from cotton.) Further, she says she feels that lesbian women should not need to
shop at special stores, although she admits she often shops in the men’s
department at Joseph A. Bank (JOSB). Her comments cause a precipitous drop in
sales at both Joseph A. Bank (JOSB) and Clean Clothes. Using the above fact
pattern, analyze fully, the following questions:
TCO F. Ellen DeGeneres sues Clean Clothes for
the use of a look-alike model forth slacks advertisement. She includes Lanham
Act, misappropriation, and “Right of Publicity” claims in her complaint.
Clean Clothes countersues for product disparagement. Joseph A. Bank (JOSB) sues
Ellen for impacting their men’s clothing sales with her unsolicited comment.
What facts will Ellen use to support her cases and why will those support her
cases? What defenses will Ellen have against Clean Clothes and JOSBs
countersuits? Do you think any of the 3 will win their cases? (Why or why not.)
Analyze the case for all three parties – who will win and why; what elements
will they need to prove, and what defenses can they show?