Intellectual Property Litigation

TV Anchor to Hasbro: “Don’t Name Your Toy After Me!”

From the What-Were-They-Thinking Department comes this story that noted Fox News Channel anchor Harris Faulkner has filed a federal lawsuit in the US District Court for the District of New Jersey against toy giant Hasbro, Inc. over one of its Littlest Pet Shop toy’s that bears her name. For some reason, Hasbro thought it was a cute idea to name its hamster figurine “Harris Faulkner” – without asking Ms. Faulkner’s permission or paying her to do so. Did they think no one would notice?

The real Harris Faulkner sent letters to Hasbro telling them to cease and desist but apparently they were ignored by the company who continued to sell the toy for months after the notice until finally pulling it from shelves this year; it can still be found on re-sellers websites like Amazon and eBay. There will be the question of profits derived from the sale of the item by Hasbro while it was available under the theory that this use violated the Emmy-award winning anchor’s rights to privacy and publicity.

The right to privacy means that a person has the right to not have their name or likeness used for commercial use without their permission. The right to publicity means that a person has the right to control how they want their name and likeness exposed to the public for commercial gain. While similar and sometimes used interchangeably by lawyers and courts, the two rights are technically separate and this use of Ms. Faulkner’s name would seem to violate both. There is no Federal right to privacy or publicity. Most states have statutes dealing with the right to privacy and the right to publicity, though New Jersey does not. Rather, New Jersey’s state appellate courts recognize a common law right of publicity and a comparable protection on a privacy theory. The unique quality of her name will make this a rather easy lawsuit to prove. “Harris Faulkner” is not a likely name to invent for a female hamster. They chose it to make use of Ms. Faulkner’s popularity. Ms. Faulkner goes one better saying that Hasbro even made it look like her. The lawsuit states:

In addition to its prominent and unauthorized use of Faulkner’s name, elements of the Harris Faulkner Hamster Doll also bear a physical resemblance to Faulkner’s traditional professional appearance, in particular the tone of its complexion, the shape of its eyes, and the design of its eye makeup

What do you think?:

Coincidence? I think not.  Image courtesy of AP/US DIstrict Court
Coincidence? I think not.
Image courtesy of AP/US DIstrict Court

The complaint alleges it’s demeaning to Faulkner and her reputation to have a rodent toy named after her and I agree. Faulkner has won six Emmys, been on TV for over two decades and is currently on Fox News Channel six days a week. But isn’t she cute! The toy sends the message that she’s just a pretty little thing. Several years ago, NY lawyer Steve Zissou sued and settled with filmmaker Wes Anderson over the use of his name in the film The Life Aquatic with Steve Zisssou though you can’t compare your name being used in the title of a Wes Anderson film with being made out to be a rodent toy. The former would be one of the greatest things ever, the latter – not so much. Both however violate the subject’s right to privacy and publicity. In any event, Ms. Faulkner and her lawyers should have an easy time on this one.

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3 replies on “TV Anchor to Hasbro: “Don’t Name Your Toy After Me!””

The recent Ashley Madison data hack revealed that Avid Life had a problem with the “Ashley Madison” name. There was a recent article that discussed how an individual (who was an unknown, part-time actress) named Ashley Madison went after Avid Media for using the Ashley Madison name. Although it wasn’t discussed in detail, I got the impression the use of the Ashley Madison name by Avid Media wasn’t meant to infringe upon the rights of this unknown actress. Nevertheless, there was a settlement.

In this day and age of the Internet, it is VERY difficult to find a “normal sounding” first name/last name combination that isn’t already used by many other people. And if your intent is to do something commercial with any first name/last name and it becomes big, there is a good chance there will be a lawsuit in general.

Regarding the Harris Faulkner name, it is hard to conceive that it was an accident but aside from the identical name, I think it is difficult to draw a direct line from this toy rodent to the news anchor. I have never heard of the name Harris Faulkner before despite the fact she is on Fox News which I occasionally watch. Fox News is a very niche audience and my guess is that most people would make no connection between the rodent’s name and the news anchor.

And even if someone recognized the name connection and similarity, I don’t think it is that obvious the toy rodent is meant to convey anything regarding the news anchor. I just cannot see how much “profit” and “benefit” Hasbro really gained by using the Harris Faulkner name. Honestly, her name, although distinct and known by a very narrow audience, is nowhere near someone like Megyn Kelley also on Fox News.

Having said all that, I believe some toymaker in Hasbro was trying to be cute (pardon the pun) by choosing a relatively obscure Fox News anchor’s name. And now there is legal trouble. My guess is that it was meant to be an inside joke as many creatives tend to do with the work they do. Programmers routinely insert lark comments into software code. Artists bury small obscure references into their artwork. Storytellers us real-life people as a basis for their characters.

Nevertheless, I enjoyed your explaining in layman terms the definition of right to publicity and right to privacy.

Well Ashley Madison certainly has bigger problems now but that name is more common than Harris Faulkner – especially for a female. This is a female hamster with a brown/beige tone, a big eyeliner. As for Ms. Faulkner’s popularity like I said in the post she’s on air every day but Saturday as an anchor and it was not just some joke or sly trick by one guy. You know what it takes to name a new product? It goes up the whole chain of command and don;t you think someone who didn’t know Harris Faulkner would ask “Why are we naming a female baby hamster Harris Faulkner?” I don;t know who approved this but they got some explaining to do

I agree with you that I don’t think it is a coincidence on the name. And I am not familiar with how Hasbro works internally regarding product names. But it does seem a bit far-fetched that there isn’t a corporate mechanism to ensure people don’t do weird things. You wouldn’t think that software have weird bugs, backdoors, or cute commentary code either from reputable software companies but they do happen. You wouldn’t think cops could get away with the things they do but they do. There are many things that shouldn’t happen in organizations but do happen. And they happen without “official” permission or approvals. But being an anchor every Saturday on a niche channel doesn’t necessarily make her well-known to many.

As you and I know, what we see as plainly obvious is sometimes not so obvious in the court of law. Remember a certain case where a certain someone NEVER contacted a certain poet anywhere and it seemed obvious? I have learned that what is “obvious” is very relative. 🙂

It will be interesting to see how this case goes. I love studying and following these types of cases!

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