Who would win in a fight between Superman and The Incredible Hulk? Or, between Spiderman and Batman? For those of you who have debated with friends over such intellectually challenging questions, you can now add the Flinstone’s “Bamm-Bamm” vs Hulk Hogan to the list.
Although Hulk Hogan has certainly tasted his share of victories inside the ring, his most recent came in the legal arena when he took on Post Foods, the food giant that makes the kids’ cereal, Cocoa Pebbles. In May 2010, Hogan (whose real name is Terry Bollea) sued Post for allegedly misappropriating his image in a television commercial featuring Fred Flintstone and Barney Rubble duking it out against a wrestler named “Hulk Boulder” on a show called the “Cocoa Smashdown.” The Hulk Boulder comic character, who had long blond hair and a Fu Manchu mustache very similar to Hogan’s, defeats Fred and Barney but then gets beaten by Barney’s son, Bamm-Bamm. The commercial ended with the slogan “little pieces…BIG TASTE.”
Hogan’s complaint, which was filed in the United States District Court, Middle District of Florida, alleged claims under the Florida right of publicity law, common law invasion of privacy and the federal unfair competition provisions of the Lanham Act relating to false endorsement. More specifically, Hogan’s complaint alleged three counts of infringement arising from the Cocoa Smashdown commercials.
First, the complaint alleged that Post publicly used for commercial and advertising purposes the name, portrait, photograph or other likeness of Hogan without written or oral consent, thereby causing him damages and injuries including denial of reasonable royalties and other compensation. Here, Hogan pointed out that he was called “Terry ‘The Hulk’ Boulder” in the initial stages of his wrestling career, and the character in the commercial is named “Hulk Boulder.” Second, Post was accused of commercially misappropriating Hogan’s name, likeness and identity for its benefit, which constitutes a common law invasion of privacy. Here, Hogan argued that the long blond hair and Fu Manchu mustache of Hulk Boulder were very similar to his signature looks. Lastly, the complaint asserted that the commercial use of the Hulk Boulder character was likely to cause confusion or deceive viewers as to the connection between Post and Hogan, which constituted false endorsement and caused diminution of his endorsement value.
For those “Hulk-a-Philes” out there, the complaint also included the following interesting facts: 1) Hogan achieved early success in Japan, where fans nicknamed him “Ichiban” (which means “Number One”); 2) AT&T reported that his 900 number information line was the single biggest 900 number from 1991 to 1993 and 3) in 1995, Hogan released a music album titled “Hulk Rules” (though the complaint fails to mention that the album is currently listed at number 12,170 on the Amazon.com Bestsellers in Music ranking).
Post apparently cried uncle and settled the case on undisclosed terms after which, in September 2010, Hogan filed a notice of dismissal. The “Bamm Bamm” commercial subsequently disappeared from the air, if not from YouTube.
A similar case of alleged infringement of the right of publicity by a cartoon character, this one involving celebrity Paris Hilton, also was settled in September 2010. In 2007, Hilton was on a reality TV show called “The Simple Life” where she incessantly used the phrase “that’s hot.” Hilton subsequently trademarked the phrase. Thereafter, Hallmark came out with a birthday card titled “Paris’s First Day as a Waitress” featuring Hilton’s head on an animated body and her phrase “that’s hot” on the cover. Hilton sued Hallmark, alleging that the card violate her trademark, misappropriated her image and invaded her privacy. In August 2009, the U.S. Court of Appeals for the Ninth Circuit reversed a lower court ruling in favor of Hallmark and remanded for a trial on Hilton’s claims. The case settled on undisclosed terms prior to the scheduled December 2010 trial date.
The Hulk Hogan case, the Paris Hilton case and other recent ones similar to them should serve as a cautionary tale to advertisers and retailers considering using a celebrity likeness without permission. Celebrities are paying attention and seem more willing than ever to enforce their publicity rights, even against cartoon versions of themselves.