|"This is the case of The Naked Cowboy versus The Blue M&M," afederal judge wrote in allowing The Naked Cowboy's lawsuit against Marscandy and Chute Gerdeman ad agency to proceed. "Plaintiff Robert Burckis a 'street entertainer' who performs in New York City's Times Square,wearing only a white cowboy hat, cowboy boots, and underpants, andcarrying a guitar strategically placed to give the illusion of nudity."He claims Mars & Chute Gerdeman based a Times Square billboard adon his character, "featuring a blue M&M dressed 'exactly like TheNaked Cowboy,' wearing only a white cowboy hate, cowboy boots, andunderpants, and carrying a guitar."
U.S. District Judge Denny Chin kindly attached photos of the two characters at the top of his ruling.
Burck,who has registered The Naked Cowboy as a trademark, claims defendants'animated cartoon ad on two enormous billboards in Times Square violatedhis trademark and his right to publicity.
Chin dismissed thetrademark complaint, finding that New York law "protects the name,portrait, or picture of a 'living person,' not a character created or arole performed by a living person. Burck may proceed, however, with hisfalse endorsement claim, for he plausibly alleges that consumers seeingdefendants' advertisement would conclude - incorrectly - that heendorsed M&M candy."