September 16, 2015

Harris Faulkner is Not a Hamster

As I lay dying of boredom the other day, the news came to the rescue. Harris Faulkner, a Fox News anchor, sued Hasbro, Inc. for false endorsement and unfair competition as well as violation of her publicity rights because Hasbro has created, manufactured, and distributed a toy that bears her name without her authorization and over her objection. Ms. Faulkner alleges that doing so has created the misimpression that she is associated with, sponsors, or endorses Hasbro's products and has infringed her right to control her name and likeness.

Ms. Faulkner enjoys a successful career as a journalist, author, motivational speaker, and news anchor. The complaint describes her numerous awards, achievements, and accolades.

Benson Detwyler & Harris Faulkner are the names Hasbro bestowed on toys from its Littlest Pet Shop series sold together as "a pet and his little pet friend." On Amazon, the product details explain that Hasbro's Benson Detwyler is a terrier and Harris Faulkner is a hamster. This is an unlikely pairing. I don't know many terriers who keep hamsters⦠as petsâ¦. or for long. If you left the animals alone together in real life, you might have a hamster one minute, and not-a-hamster the next.

[caption id="attachment_5850" align="aligncenter" width="402"]

Terriers and hamsters: bosom buddies or natural enemies?[/caption]

This case provides us with yet an another opportunity to observe the intersection between trademark rights and publicity rights. As you know from previous posts here and here , personal names may be registered as trademarks and celebrities often opt for this form of protection. Here, Ms. Faulkner does not claim trademark rights in her name for use in connection with commercial products. In fact, she explains that journalistic integrity and her employment contract prevent her from doing so and she objects to Hasbro's attempt to claim such rights. Hasbro uses the "TM" to signal its claim to common law trademark rights in the toys' names, including "Harris Faulkner." Ms. Faulkner alleges that this causes the public to believe there is some connection between her and Hasbro or its products and that this constitutes unfair competition under the Lanham Act. Ms. Faulkner's complaint claims she has evidence of actual confusion among consumers wondering whether she sponsored or approved of the toy product.

Next, Ms. Faulkner claims that Hasbro misappropriated her name and likeness for its own commercial interests without her consent, which violates her publicity rights. Ms. Faulkner objects that portraying her as a rodent is demeaning and insulting and that use of her name for this purpose damages her credibility and the value of her name and persona. Was Hasbro's selection of a name coincidence or intentional?

Other toys in the Little Pet Shop product line bear unusual personal names (like Otis Beasley for a beagle and Harriet Grand for a hippo). "Harris Faulkner" is such an unusual name that it is difficult to believe Hasbro selected it without reference to Ms. Faulkner, who has been on national television for over a decade.

At the same time, the complaint's allegations that Hasbro is otherwise trying to capitalize on Ms. Faulkner's likeness are a little hard to swallow.[1] The complaint alleges that the hamster is designed to resemble her appearance by virtue of the toy's "complexion, the shape of its eyes, and the design of its eye makeup." Judge for yourself:


I don't think the toy resembles a hamster or Ms. Faulkner.

This seems like a case that should settle. Here's hoping the parties are able to put the case to rest quickly.

[1] Careful; choking hazard! Just like Hasbro's package warning about the toy hamster.