Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., Nos. 12-17502, 12-17519, 12-17595, 13-15407, 13-15473 (9th Cir. Feb. 20, 2015).
Hope Road, a business formed by Bob Marley’s kids to market Bob-Marley-themed merchandise, sued a group of defendants who had rights to certain Marley photographs and were sticking those photos on t-shirts and similar merchandise.
Hope Road asserted a claim for “false endorsement” under the Lanham Act. “False endorsement” is shorthand for selling a product using a “name, symbol, or device” that’s likely to cause confusion about the product’s “origin, sponsorship, or approval.” The gist of Hope Road’s claim is that the defendants’ use of Marley’s persona was likely to lead consumers to think that Marley’s estate sponsored or approved defendants’ products. After a trial, a jury returned a verdict in favor of Hope Road.
On appeal, the Ninth Circuit, noting that the defendants waived a number of possible defenses, upholds the district court’s judgment against several challenges.
Judge Christen concurs in the result, but notes that the consumer-confusion survey commissioned by Hope Road proved only that many people thought Marley’s estate had given its official permission to defendants to use his image. In her view, however, “confusion” under the Lanham Act requires that consumers’ confusion affect their purchasing decisions. And here, she says, there was no proof that permission from the estate, or lack thereof, would have affected purchasing decisions. One wonders if this analysis is correct. Judge Christen’s concerns seem to relate to whether a plaintiff incurred actual damages, rather than to whether consumers were confused.