Harris Faulkner and the Hasbro toy hamster
Harris Faulkner, a well-experienced Fox News anchor, recently filed a complaint in federal court against the world’s third largest toy manufacturer, Hasbro.[1] The complaint was brought under trademark law and § 43 of the Lanham Act for unfair competition, and damage to her image.[2] The product in question is a toy hamster and part of the company’s successful Littlest Pet Shop collection.[3] The hamster is named after the news anchor, and in her complaint Harris Faulkner says the toy resembles her “complexion, eye shape and eye make-up design.”[4] The toy was first introduced to the line in 2014 and Faulkner responded by putting Hasbro on notice for their alleged trademark and unfair competition violation. [5] Hasbro did not react and Faulkner is now claiming Hasbro’s use of the anchor’s name, likeness, identity, and persona is damaging, unauthorized, and constitutes misappropriation.[6] Furthermore, the packaging for the toy in question uses a ‘TM’ symbol next to the anchors name – falsely alluding to the fact that Hasbro has a trademark in the name Harris Faulkner.[7] As such, the news anchor is seeking $5 million in financial damages, and to permanently enjoin and restrain Hasbro from continued misappropriations of her name, likeness, identity, or persona.[8]
This very recent complaint bears a striking resemblance to a 1992 case, White v. Samsung Electronics, 971 F.2d 1395. Vera White brought this action in the United States Court of Appeals for the Ninth Circuit in response to a Samsung advertisement, which included an image of a robot wearing a dress and pearls on a game show.[9] The image called to mind Vera White and her appearance on Wheel of Fortune, despite Vera White not being mentioned by name.[10] Samsung did not obtain permission from White and the majority opinion of the court held that celebrities have a commercial interest in their identities, and the law must protect this interest.[11] However, the dissent in this case has been granted significant weight and stated that the Samsung advertisement depicts a generic game show host and does not allude to Vera White specifically.[12]
At the outset, the Harris Faulkner’s case could either go either way. On the one hand, the complaint makes an even stronger case of misuse than White because Faulkner’s name was used directly. On the other hand, the complaint may not constitute the same level of misuse in White. While Hasbro does use Faulkner’s name on the product, it is my opinion, the toy hamster does not have the same complexion as the news anchor, nor are the wide eyed heavily made up eyes characteristics of Harris Faulkner alone. In conclusion, the misuse of Harris Faulkner’s name is quite blatant, as for her likeness, identity, and persona? We will have to wait and see.