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Abstract

For more than fifty years, the United States Court of Appeals for the Sixth Circuit vigilantly protected the intellectual property rights of trademark owners and persons seeking protection of their privacy and rights of publicity. Less than two years ago, that changed. In a turnaround remarkable for its suddenness and completeness, the court veered away from protecting intellectual property rights. Perhaps the reason for the departure lies in the stinging reversals of two of its decisions by the United States Supreme Court, or perhaps it lies in a string of admittedly questionable cases brought by overreaching plaintiffs. Regardless of the reasons, the new precedents are now out there and plaintiffs everywhere must think twice about bringing a trademark case in the Sixth Circuit.

The Sixth Circuit should not be proud of its legal reasoning and analysis in the 2003 decision ETW Corp. v. Jireh Publishing, Inc. (hereinafter “Tiger Woods” ). In a 2-1 decision, the Sixth Circuit held that it was perfectly acceptable for an “artist” to use Tiger Woods’ image and highly-marketable persona to generate 250 serigraphs and 5,000 lithographs featuring Woods in a pose that is strikingly similar to a poster of Woods that is licensed to and sold by Nike. The stated rationale for this decision was an inexplicable reliance on the First Amendment—and nearly no citation to the entire body of unfair competition, trademark or right of publicity law—to justify the defendant’s outright commercial misappropriation of Woods’ persona and right of publicity.

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