RC3, Inc., a mobile application development company, created "Joustin' Beaver," a mobile application available for download on smartphones and tablets. The app features a cartoon beaver called JB floating on a log down a river. The beaver attempts to knock back "phot-hogs" who attempt to take the beaver's photograph while signing "otter-graphs." RC3 received a cease and desist letter from Bieber's attorneys, which asserted that the app constitutes trademark infringement, unfair competition, and a violation of Bieber's right of publicity. RC3 filed a declaratory action, seeking that the court rule that the app, the website (joustinbeaver.com), and the use of the term "Joustin' Beaver" are protected parody under the First Amendment and do not infringe, dilute or otherwise violate Bieber's rights.
TIP: Although the First Amendment may protect a video game parody of a famous celebrity, courts do not typically give broad protection for parodies in advertising, as commercials are generally not entitled to all the same protections as non-commercial speech. Companies should exercise caution when referring to celebrities in advertising without permission.