Recently, news of California medical marijuana dispensaries selling a strain called “Linsanity” set loose Jeremy Lin’s lawyers—demand letters a flurry allegedly seeking apologies. This isn’t the first time a celebrity name has been used in connection with medical marijuana—does Tom Cruise Purple, aka Purple Cruise ring a bell?
Lin’s trademark attorney, Pamela Deese, commented to the media that, “You can’t file a trademark when there’s a clear connection to someone else’s name . . . [i]n this case, Jeremy Lin has the right to his name and related names and marks, as well as his signature, voice and likeness. That’s all part of his intellectual property.” See here
Certainly using a famous name without permission on any product, much less medical marijuana, is sure to raise some eyebrows. There are several bases on which to form a claim. To put an end to LINSANITY brand medical marijuana, Ms. Deese could assert Mr. Lin’s protected right of publicity. In California, the right of publicity protects the unknown and well-known from impermissible uses of their name or likeness. Although the claim does not have to be based on use of an actual name or picture, the alleged impermissible use must at least identify the plaintiff.
Nicknames, cars, even robot likenesses have been found to satisfy the requirements. Is Linsanity a nickname for Mr. Lin or a reference to his explosion onto the basketball scene? Does it make a difference?
Ms. Deese’s assertions also might be referring to a claim for false endorsement under the Lanham Act, which does not require a trademark as the basis of the claim. A claim under the Lanham Act may be based on the “celebrity” of the plaintiff. No one wants to insult Mr. Lin by suggesting he isn’t famous enough to raise this cause of action . . .
Ms. Deese also might be referring to garden-variety trademark infringement based on Mr. Lin’s pending application to register the mark LINSANITY for various goods including, duffel bags, cups, mugs, clothing, action figures, sporting goods, and sports drinks. Likelihood of confusion with medical marijuana? How about tarnishment of Mr. Lin’s famous mark? Things are getting personal again.
Practice Note: Cobalt has been talking about this issue for some time; in fact, we’ve dedicated two different Cobalt Academy sessions to copyright and trademark issues related to medical marijuana. March 2011 Academy.
What do we think? For starters, don’t use a famous name without permission. And don’t think that trademark protection isn’t a viable strategy in the world of medical marijuana—for instance, we’ve proposed measures such as seeking state registrations and ensuring that your brand strategy is law-abiding. In unchartered waters, treading legally is the best step toward protecting yourself and your customers’ best interest.