When Hasbro introduced a hamster named “Harris Faulkner” to its “Littlest Pet Shop” line of animal character toys, it drew a multi-million dollar lawsuit from real-life television journalist Harris Faulkner. The complaint, filed in New Jersey, included claims for violation of the right of publicity under New Jersey common law and false advertising and false endorsement under the Lanham Act.

Name That Right

Ms. Faulkner does not hold a trademark on her name. As we have discussed before, no one can trademark the name of a living person without her consent. But barring someone from obtaining a trademark on a name is not the same as preventing them from using it. That’s where the right of publicity comes in.

The right of publicity is a key tool for the protection of personal intellectual property, like your name or your image. What the right of publicity consists of varies from state to state because it is a creature of state common law, not federal statute. In New Jersey, the right of publicity protects the use of someone’s name or likeness without her consent. Here, Ms. Faulkner argued that Hasbro used both her name and her likeness in its toy hamster.

Hasbro moved to dismiss the case, arguing that there was no similarity in likeness and that Ms. Faulkner could not maintain a case based on her name alone. Hasbro lost and the case quickly settled. The positions taken by the parties in the case highlight the shifting contours of rights over names in the digital age. And the case itself highlights the pitfalls of product naming decisions by business people and their in house counsel.

Join Kandis Koustenis and Jennifer Atkins as they discuss Harris Faulkner’s case against Hasbro, the value of the right of publicity, and practical pointers for product naming decisions for business owners and in-house counsel.

Photo Credit: Jen_rab used with permission and without modification under a creative commons license.