1. TCO F. Men2Wimmin (M2W) sends a cease and desist letter to Clean Clothes (CC) demanding CC stop using M2W’s tagline, which is registered with the Trademark Office. Clean Clothes responds, stating that (a) CC’s tagline is different enough as not to violate the trademark, (b) CC didn’t know about M2W’s tagline so they couldn’t have copied it, and (c) Men2Wimmin has no damages and therefore can’t sue Clean Clothes. Analyze the case for Men2Wimmin, including the elements of any case they have, and explaining any defenses that Clean Clothes might raise against them. What damages can they request, and do you think they will get them? Why or why not?

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It is discovered that 2 weeks before the Ellen show, she had sold $2 million in JOSB stock (at a gain of about $2,200). The morning after her show, Ellen sold JOSB short (which means she was betting the stock price would go down), and she made another $210,000 in the next week on that trade. The swing in the price was not directly tied to her comments but was suspected to be a result of a recall JOSB made on their entire line of men's black and brown dress slacks when it was discovered that they had been sewn together with white thread. Ellen's previous trading activity shows that she made it a normal practice to “vigorously trade” the stock of any company with which she did business. A review of her trading activity for the past year showed that she had bought and sold JOSB stock 25 different times, including short sales like this one. Her overall trading for JOSB stock for the last 12 months was a net loss of $82,000.00. Do you think the SEC will file anything against Ellen for her sales of JOSB? Is there any cause to do so? Analyze her transactions with respect to insider trading activity (based on what you know) and whether she should be concerned. Is her prior trading activity a defense? Should Ellen have avoided discussing JOSB publicly on her show because she typically trades their stock?

The three parties involved in this business matter are Ellen DeGeneres, Clean Clothes Company and Joseph A. Bank clothing store. Ellen DeGeneres is suing Clean Clothes Company for using her likeness and dance in a commercial video without her permission. The law that Ellen is presented in the court is misappropriation and right of publicity against the Clean Clothes Company. The Clean Clothes Company is countersuing Ellen DeGeneres for product disparagement. While Joseph A. Banks, is suing Ellen DeGeneres for the reduction of sales on clothes because of an unsolicited comment on her show.
The law of misappropriation means that it is also considered tortious for a business to appropriate the name or likeness of a famous individual for commercial advantage. All individuals are vested with an exclusive property right in their identity. No person, business, or other entity may appropriate an individual's name or likeness without permission.
And the law of the right of publicity means Right of publicity means the right of an individual to control any commercial use of his/her name, image, or some other aspects of one's identity. In the U.S., it is a state law-based right. In the U.S., right of publicity is enforced through state law. The recognition of the right varies from state to state. Some states have clearly provided this right by way of statute. States which do not have specific legislation relating to the right to publicity recognize the right by way of common law. It is generally considered a property right rather than a personal right. So the right of publicity is descendible to the person's heirs after their death.
"Right of publicity" means a personality's property interest in the personalities:
(1) Name;
(2) Voice;
(3) Signature;
(4) Photograph;
(5) Image;
(6) Likeness;
(7) Distinctive appearance;
(8) Gestures; or
(9) Mannerisms (www.uslegal.com)
Ellen DeGeneres needs to prove the elements that the Clean Clothes Company used her likeness as a famous person in order to increase the sale of clothes at the store without consent. She also has to prove that she has the right to control the use of her name, likeness, gestures and mannerisms in public.
While the clean clothes company has to defend their right to use the Ellen DeGeneres like-model only on the YouTube video and they only advertised their clothes on YouTube, Twitter and Facebook which is not considered public access until application for membership is made.
The Clean Clothes Company has to prove that Ellen knew that the pants advertised were organic cotton instead of Alpaca wool and Ellen has to prove that The Clean Clothes Company did use Alpaca wool to make the pants that were involved in the case (www.uslegal.com)
The unsolicited comments made by Ellen about buying clothes at the men's department of Joseph A. Banks did not have malice in the comment nor did it defame the products sold at the store, but she was just making a comment.
The Joseph A. Banks Company must prove that Ellen's comments were meant as harm to their products sold and that she defamed the products of the store, while Ellen has to defend herself against The Joseph A. Banks company by proving that she meant no malice or harm to the Joseph A. Banks company when she made the unsolicited comment about where she brought her clothes at.
I feel that Ellen DeGeneres will win the case because The Clean Clothes Company did actual make a video at YouTube showing the likeness, gesture and mannerism of Ellen without her permission. I feel that The Clean Clothes Company will not win the countersuit because Ellen did go on her show and make a false statement, but an erroneous comment about the material that the pants were made of. I feel that the Joseph A. Banks Company will not win their lawsuit because there was no defamation of products when Ellen made her unsolicited comment on her show.
References:
www.uslegal.com
www.expertlaw.com