Right of Publicity, Commercial Use of Name or Likeness

The use of the name, voice, signature, photograph, or likeness of another person for commercial purposes without the consent of such person is a civil wrong in many jurisdictions. The remedies for such unauthorized use, as well as specific definitions and procedure, may be controlled by statute, such as California Civil Code §3344 and §3344.1 or by general principles of common law, or both.

While the right of publicity appears similar to a trademark right, particularly when a name is used without consent, the right of publicity arises out of a different factual setting. As a result, its applicability and scope are quite different. For example, a famous person who has sold no goods or services has no trademark right, but may stop others from using her name to sell goods or services of all kinds.

On the other hand, the right of publicity as a common law right is personal, and so dies with the person, while the right may be defined as property by statute (as in California Civil Code §3344.1(c)), and inheritable to specified persons, or transferrable to others by contract. In California, the statutory right of publicity then expires 50 years after the death of the person from which the right originates.

Domain Names

As noted elsewhere on this site, a domain name is a designation used to identify a computer memory location in readable form, rather than in the series of numbers used by computers. Rights to domain names are controlled by statute, both Federal and California, and contractually agreed arbitration (ICANN)

Articles of Incorporation - Business & Professions Code §14415; Corporations Code §200

While the formation of a legal entity, such as a corporation, does not control trademark rights, the filing of articles of incorporation, along with the conduct of business under the corporate name, establishes a presumption under Business & Professions Code §14415 that the corporation has an exclusive right to use the corporate name, and confusingly similar names, as a trade name in California. The same presumption arises upon obtaining a certificate of qualification under Corporations Code §§2105 and 2106.

Fictitious Business Names - Business & Professions Code §17900; §14411

The filing of a fictitious business name statement (also known as "dba") establishes a presumption under Business & Professions Code §14411 that the registrant has an exclusive right to use that name, and confusingly similar trade names, as a trade name in the county in which the statement is filed if the registrant is the first to file such a statement in that county, and the registrant is actually engaged in a trade or business utilizing that name in that county.

Trade Names and Designations - Business & Professions Code §14401 - §14405

Trade names are accorded the same exclusive rights given trademarks in California under Business & Professions Code §14401-14405, and special provisions thereunder govern assignment (§14401), containers and labels (§14403), defacement and obliteration (§14404), and "trafficking" or refilling containers (§14405).

Gray Goods/Parallel Imports - California Civil Code §1797.8 - §1797.86

The question of the rights when someone other than the designated exclusive importer imports genuine goods ("gray goods" or "parallel imports") must be addressed when considering the extent of trademark rights and when considering licensing. In the U.S., a trademark owner may generally designate a geographical area within which a license has exclusive rights, while the contrary is often true on other jurisdictions (notably the European Union, where "single market" concepts are observed). California defines "gray market goods" under California Civil Code §1797.8, and goes on to require written disclaimers by retail sellers about lack of warranty, accessories, replacement parts, instructions, or rebates, if applicable, and incompatibilities if any (New York has a similar law).

Advertising - California Business & Professions Code §17531

Trademark rights may be policed under laws governing false advertising under appropriate circumstances, such as where a retailer leads consumers to the false impression that its properly authorized (parallel import) goods are obtained from an exclusive U.S. importer. California addresses advertising questions related to trademarks by requiring disclosure whether merchandise is second hand, "seconds," blemished, or simply rejected by a manufacturer as "not first class" Business & Professions Code §17531, and prohibiting advertisment for merchandise which uses governmental symbols and names unless it has a "expressed connection" with such governmental entities (and then only under certain conditions) Business & Professions Code §17533.6, and prohibiting advertisement which states or implies manufacture in the U.S. unless the goods so advertised were made only in the U.S.