Carmen Electra, et al. v. 59 Murray Enterprises, Inc., dba New York Dolls Gentlemen's Club, et al.

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1), creates a civil action in favor of “any person who believes he or she is likely to be damaged” by another person’s use of a trademark, or a false or misleading representation, 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[.]” 15 U.S.C. § 1125(a)(1). Among the purposes of this statute is “where the owner of a trade-mark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 781, 82, n.15 (1992). Despite the Lanham Act’s broad extension of a civil remedy to “any person who believes he or she is likely to be damaged,” lower courts have divided over whether an individual asserting a claim under section 1125(a) based on the misuse of their image, likeness, or identity by another in an advertisement must establish they have a “commercial interest” in their identity, or whether they must establish a higher, unspecified, and necessarily arbitrary level of “celebrity,” “recognition,” or “public prominence” to sustain a claim. The question presented is: Must an individual prove they have a commercial interest in their identity, or must a person prove they are