Fifty-Six Hope Road Music v. A.V.E.L.A.

The “likelihood of confusion” inquiry for a Lanham Act false endorsement claim includes the consideration of eight factors: (1) the level of recognition that the celebrity has among the segment of the society for whom the defendant’s product is intended; (2) the relatedness of the fame or success of the celebrity to the defendant’s product; (3) the similarity of the likeness used by the defendant to the actual celebrity; (4) evidence of actual confusion; (5) marketing channels used; (6) likely degree of purchaser care; (7) defendant’s intent on selecting the celebrity; and, (8) likelihood of expansion of the product lines; when the plaintiff is not the celebrity himself, the additional factor of the strength of association between the mark and the plaintiff is also considered.

Fifty-Six Hope Road Music, (“Hope Road”) “is an entity owned by [Bob] Marley’s children, formed for the purpose of acquiring and exploiting assets, rights, and commercial interests in the late Bob Marley.” A.V.E.L.A. acquired photos of Marley and “licens[ed] them to defendants Jem and Freeze . . . for the production of Marley t-shirts and other merchandise.” Hope Road filed a complaint against A.V.E.L.A. and related defendants, “alleging five claims arising from [using] Marley’s likeness,” which included trademark infringement, false endorsement, and “intentional interference with prospective economic advantage.” The district court found in favor of Hope Road for the interference claim and the false endorsement claim, while A.V.E.L.A. and the related defendants were granted summary judgment for the remaining three claims. A.V.E.L.A. and Hope Road appealed their respective judgments against them. On appeal, the Ninth Circuit reviewed the claims of Hope Road and A.V.E.L.A. The arguments on appeal mainly stemmed from the false endorsement claim, so the panel reviewed the false endorsement claim by analyzing section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The panel specifically reviewed “‘[t]he “likelihood of confusion” inquiry [by considering] whether a reasonably prudent consumer in the marketplace is likely to be confused’ as to the sponsorship or approval of the goods bearing the marks at issue in the case.” The panel applied “eight factors to determine the likelihood of confusion,” including the additional factor “[w]here the plaintiff is not the celebrity himself,” and found that the evidence supported the verdict. From there, the panel reviewed the remaining appeals, and affirmed the district court’s judgments, including the district court’s judgment regarding attorney’s fees and determination of profits. AFFIRMED.