Wednesday, January 1, 2014

ETW Corporation v. Jireh Publishing, Inc. case brief

ETW Corporation v. Jireh Publishing, Inc. case brief summary
332 F.3d 915 (2003)

Plaintiff licensing agent sued defendant publisher, alleging, inter alia, trademark infringement in violation of 15 U.S.C.S. § 1114 of the Lanham Act. The United States District Court for the Northern District of Ohio at Cleveland granted summary judgment to the publisher and dismissed the case. The licensing agent appealed.

The licensing agent claimed that the artist's prints constituted unauthorized use of a registered trademark in violation of the Lanham Act and Ohio law.


  • The court held that the district court properly granted summary judgment on the agent's claim for violation of its registered mark on the grounds that the claim was barred by the fair use defense. 
  • The court then addressed trademark claims under the Lanham Act based on the unauthorized use of the famous golfer's likeness. 
  • The court held that, as a general rule, a person's image or likeness could not function as a trademark. 
  • Third, it addressed Lanham Act claims of unfair competition and false advertising in the nature of false endorsement, and a claim for infringement of the right of publicity under Ohio law. 
  • As to the Lanham Act false endorsement claim, the court held that the Lanham Act should be applied to artistic works only where the public interest in avoiding confusion outweighed the public interest in free expression, and the Act did not apply to the artist's work. 
  • The work also did not violate the golfer's Ohio law right of publicity. 
  • Finally, the golfer's right of publicity yielded to the First Amendment.
The judgment of the district court granting summary judgment to the publisher was affirmed.

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