ED Publications

ED July 2016

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Page 49 of 83

50 July 2016 Club Bulletin www.EDpublications.com (and presumably own the rights to the photographs, either through copyright or a signed release) for putting them into "distribution." Amazingly, even in light of the frustrating assertion of many claims that have "no basis in law or fact," and are, quite honestly, stretching many legal theories beyond the breaking point, these lawsuits are being filed against gentlemen's clubs at a pace to rival the Fair Labor Standards Act cases that plague the gentlemen's club industry. These cases have filed in both State Court and Federal Court, and include (in the Federal cases) allegations of violations of the Lanham Act. This Act, passed by Congress in 1946, was designed to set out the remedies that can be sought when a trademark is infringed. Various provisions forbid the importation of goods that infringe registered trademarks, and restrict, through the use of injunctions and damages, the use of false descriptions and trademark dilution. Another component is the "likelihood of confusion" standard for infringement of an unregistered trademark or trade dress, and courts still frequently refer to the provision as "Section 43(a)," which states: (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. 15 U.S.C. § 1125(a)(1)(A) is often used when false or misleading statements are alleged to have hurt a consumer or business. The claimant must prove that a false or misleading statement was made in commerce and that the statement creates a likelihood of harm to the plaintiff. 15 U.S.C. § 1125(a)(1)(B) is often used when false or misleading statements are alleged to have hurt a business. The disconnect with this argument is that the mere use of a "pretty face" does not cause confusion, and simply does not lead to the "mistake" that some patron of some gentlemen's club is either going to believe that one specific "pretty face" will be at any club he attends, or that the proverbial "eye candy" portrayed by any plaintiff is engaged in the same type of endorsement that say, a Tiger Woods would have appearing in a golf glove ad. The use of the "pretty face" to market everything from eye cream to washing machines to caskets (yes, I have seen such an ad!) just does not work in a setting where, since there is no "control" over what particular "dancer" may or may not be present at any particular club at any particular time, the "portrayal" is neither true nor false, it is just a reflection of this country's overwhelming use of generic female beauty to market anything and everything. continued from page 48

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