Elvis Presley Enterprises (EPE), which represents the interests of the estate of Elvis Presley, has filed suit in a Federal Court based in Tennessee against the gun manufacturer Beretta. EPE claims that a Beretta campaign surrounding the launch of the model 692 shotgun gave rise to claims of violation of the Federal Lanham Act (which governs trademarks and unfair competition), Tennessee and Nevada right of publicity, and common law unfair competition. It’s unknown whether EPE’s attorneys shot out their TVs when they first saw this allegedly infringing campaign.
I always love when legal documents present facts that everyone already knows. From EPE’s Complaint in what I’m calling Elvis v. Baretta:
Elvis Presley (“Elvis”) was a world famous entertainer, and his career is without parallel in the entertainment industry.
Elvis was aware of his fame and sought to capitalize on it during his lifetime.
No doubt about that. How may billable hours are we up to at this point? OK, now we’re getting into the relevant stuff:
Elvis’ interest in firearms and target shooting is well-known by his fans and gun aficionados…Beretta made a deliberate and intentional decision to tie its new product, model 692, to Elvis and trade on his popularity to generate as much publicity as possible when introducing model 692 to the public…Beretta developed the Elvis Themed Advertising Campaign for the model 692 describing the gun as the “new legend in clay shooting” and used advertising material and techniques intended to suggest that the gun’s status ultimately would be equivalent to Elvis’ legendary status as an entertainer.
Now we’re getting somewhere.
As part of the Elvis Themed Advertising Campaign, Beretta advertised that Elvis was coming to these events. At every venue, Beretta had Elvis impersonators to appear and/or perform and greet the gun enthusiasts attending such events. In some cases, they had the Elvis impersonators pose with the weapons.
EPE claims that Beretta violated Section 43(a) of the Lanham Act by committing false designations of origin, false or misleading descriptions or representations of fact, and unfair competition. Just in case you haven’t memorized it, Section 43(a) reads, in relevant part:
(a) Civil action
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.…
My faithful readers will recognize that this is similar to a trademark likelihood of confusion claim. Essentially, if you mislead the public as to the association of a person with your goods or services, you’re staring down the barrel of a violation of Lanham Act Section 43(a)(1)(A).
EPE also claims that Beretta’s use of “the name, likeness, image of Elvis and other indicia of Elvis’ identity without permission and authority from the plaintiff in connection with Elvis Themed Advertising Campaign to generate interest and sales in Beretta’s products” violated EPE’s common law rights of publicity as well as those granted by statute in Tennessee and Nevada (the latter state is referenced due to Beretta’s alleged use of Elvis at a 2014 Las Vegas gun show.)
I’ve discussed right of publicity claims before, including in this blog post about Kim Kardashian and a robot Vanna White (see kids, learning about the law is fun.)
Beretta’s execs must have inhaled too much gunpowder before embarking on this marketing campaign. Elvis’ estate is known for being highly protective of their rights. The moral of this story is Don’t Mess With The King.
So, while EPE and Beretta fire away at each other, let’s enjoy San Diego rock legend Mojo Nixon’s hit, “Elvis is Everywhere.” Who built the pyramids? Elvis! Who built Stonehenge? Elvis!