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July 16, 2018

Understanding False Endorsement and Right of Publicity Claims in a Digital Age

By Mark S. VanderBroek

International Trademark Association’s INTA Bulletin

In the United States, right of publicity laws at the state level prohibit the unauthorized use of a person’s name, image, or other aspect of identity for commercial purposes. In many of these situations, Section 43(a) of the Lanham Act (the federal Trademark Act) will also provide a claim for false endorsement of goods or services. Understanding these claims is particularly important in today’s digital age of ubiquitous smart phone cameras and expanding social media platforms (with both businesses and celebrities promoting their brands), in which posting (and reposting) of photographs and other aspects of a person’s identity can be done instantly and without much thought. In this context, it is important to understand the similarities and differences between right of publicity and false endorsement claims, and identify situations in which one claim or the other may provide a plaintiff’s only means of challenging a defendant’s misappropriation of a plaintiff’s identity.