6th Circuit rejects college players’ Lanham Act, ROP claims

Marshall v. ESPN, No. 15-5753 (6th Cir. August
17, 2016)
Plaintiffs claimed that, as college football and basketball
players, they had publicity rights in their names and images as used in TV
broadcasts.  “Whether referees, assistant
coaches, and perhaps even spectators have the same rights as putative licensors
is unclear from the plaintiffs’ briefs.” 
Tennessee’s right of publicity statute, however, explicitly excluded any
“sports broadcast,” and Tennessee refused to recognize any common-law right of
publicity.  This also killed a Sherman
Act claim, since there could be no conspiracy to control a non-existent right.
Plaintiffs’ Lanham Act claims failed because—well:
The theory here is that if, say,
ESPN shows a banner for ‘Tostitos’ at the bottom of the screen during a football
game, then consumers might become confused as to whether all the players on the
screen endorse Tostitos. Suffice it to say that ordinary consumers have more
sense than the theory itself does.

But honestly, is this theory (which was justly rejected) any
more ridiculous than the theory that consumers might think that a fast food
restaurant endorsed a movie about beauty queens?  That consumers might think that Jose Cuervo
had partnered with a whiskey company because both used red wax seals among many
other packaging devices?  That Budweiser
might have endorsed a parody ad for Budweiser Oily?  And, if we have nothing but common sense to
guide us here, on what basis exactly is the players’ theory so easily
distinguishable from those successful claims that it doesn’t even reach
plausibility?

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