Boxer’s suit is a one-two Lanham Act/right-of-publicity combo
“Iron Mike” Tyson is a controversial sports figure who seems in equal parts loved and loathed by the public. Celebrated for a genuine world-class talent and derided for his behavior in and out of the ring, Tyson has a public profile that has generated decades of attention and – for certain people – profit.
The Boxing Hall of Fame, a Las Vegas-based organization, provoked a throw down with the former champ when it began using his image and the moniker “Iron Mike” on T-shirts and other memorabilia. The Hall of Fame also allegedly made deals with third parties such as American Classics Apparel and Urban Outfitters to sell the merchandise.
In a complaint filed in the District of Nevada, Tyson claims three grounds for a suit against the Hall of Fame and its founder, Steve Lott: first, his ownership of the federally registered trademark “Mike Tyson”; second, his ownership of the nonregistered trademark “Iron Mike,” which he claims is known to the general public as his nickname; and third, statutory protections of his name and likeness that establish his “hard-earned right of publicity.”
Tyson is claiming registered and common-law trademark infringement and trademark dilution of his name and nickname under the Lanham Act. Under Nevada Revised Statute 597.790, which establishes a right-of-publicity for state residents, Tyson is claiming damages arising from the Hall of Fame’s “unauthorized use and exploitation of his name and likeness.” Other claims under Nevada state law include common-law trademark infringement and dilution and unfair competition.
There is surprisingly little case law regarding Nevada’s rights-of-publicity statute. However, state rights-of-publicity laws generally give strong protections to people to limit the commercial use of their name, likeness and persona, absent a First Amendment fair use. It will be interesting to see which of Tyson’s claims survive, and whether an overlap develops between the state law and Lanham Act claims. Keep in mind that while an effective disclaimer may insulate a use against a Lanham Act claim if it prevents the likelihood of consumer confusion, rights-of-publicity laws protect a property right, and consumer confusion as to source or affiliation is irrelevant.