Celebrity Trademark Watch: Marilyn, Elvis and Michael Teach Us How to Beat the High Cost of Dying

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Marilyn Monroe was perhaps the more clever of Hollywood’s famous dumb blondes. While doubtless no rocket scientist, she nonetheless continues to exploit her carefully honed image to great effect even today. However, 1940’s screen siren Hedy Lamarr, herself a rare beauty, may have been the vixen with the truly beautiful mind. Indeed, she had the intellectual property to back it up -- in 1942, several months after the U.S. entered World War II, she received a patent for inventing a secret communication system that she hoped would make radio guided torpedoes harder for enemies of the U.S. to jam. This invention was an early iteration of frequency hopping technology that most of us now exploit in our daily lives in the form of WiFi internet connections. Ms. Lamarr apparently never made much financial exploitation of her IP, but perhaps she didn’t know what so many other celebrities have come to learn. Patents and even copyrights provide rights which are limited in time -- but trademarks, like diamonds, can last forever. Lamarr need only have asked Monroe for some advice, and she might have learned that trademarks are a girl’s best friend.

Unlike its intellectual property cousins, trademarks are not granted by the government for a time certain but, rather, accrue their value by their association in the minds of the consuming public with a source of goods or services. As long as the mark continues to serve that function, it can last indefinitely. This is something that Ms. Monroe or, more to the point, her estate now knows very well. Marilyn was the third highest earning dead celebrity last year according to Forbes, earning some $27 million. This was in large part due to Ms. Monroe’s estate having been acquired by Authentic Brands Group LLC early last year. Since then, we’ve seen Marilyn pop up in an ad for Dior’s J’Adore perfume, MAC will be launching a limited release of Marilyn Monroe cosmetics later this year, and we may soon see a chain of Marilyn Monroe cafes. Almost fifty years after the legendary actress’ death, brand Marilyn is riding a wave of success bolstered by a recent Academy Award-nominated biopic and the fictional Marilyn Monroe musical at the heart of the TV hit Smash.

Ms. Monroe is in good company. The second highest earning dead celebrity was Elvis Presley who, nearly 35 years after his death, sees his name used as a brand for myriad products --  from key chains to wine. The highest earning dead celebrity last year was Michael Jackson, who earned an astounding $170 million. This is more than most powerful living celebrities earned. It seems the Gloved One’s estate knew all too well the grim truth about an artist’s economic value -- it often goes up after a visit from the grim reaper. This perhaps explains why, a mere two months after Mr. Jackson passed away in 2009, his estate filed a number of applications for federal trademark registrations in the late singer’s name. The Lanham Act does not preclude such posthumous registration protection provided that the applications are filed by the late celebrity’s estate or heir(s). If someone other than the owner of the celebrity’s post mortem rights attempts to register the celebrity’s name or image as a trademark, they should be barred from doing so under Section 2(a). But popular celebrities who wish to protect their branding rights in perpetuity take heed -- be certain to bequeath these rights as part of your legacy. As Maria Callas learned, it ain’t over until the fat lady sings, or, in her case, until the slender diva signs her will. Having found no evidence that La Divina had passed her intellectual property rights along to her estate, the Trademark Trial and Appeal Board, in 2008, determined that the Patent and Trademark Office had no basis to refuse registration to one other than her estate for a MARIA CALLAS trademark used in connection with jewelry. Notoriety can serve as a solid base upon which to build a brand, but some attention to detail is required to ensure a celebrity’s brand won’t be usurped after they have taken one last bow.

And remember, while being a celebrity who has entered into the great beyond may seem to have some financial advantages, it doesn’t come without bumps along the way. Just ask Humphrey Bogart, whose current corporate beneficiary was recently sued by Burberry in a declaratory judgment of trademark non-infringement action. I’m guessing that is not what his Maltese Falcon character Sam Spade was talking about when he spoke of “the stuff that dreams are made of.”

Next time on Celebrity Trademark Watch: Madonna, who is about to launch a mammoth world tour and who once paid famous homage to Marilyn Monroe in her Material Girl video, helps us understand why a title or a moniker is not the same as a trademark.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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