Trademark lawyers say Katherine Heigl can probably win suit over Tweet.
The buzz about Twitter has been roughly the same for as long as it’s been around: “look what I ate for lunch,” “@myfriendso-and-so,” and “#othersubjects” –most tweeters still seem a little unsure about what hashtags do, or when to use them. In any case, Twitter and its tweeters are determined to make use of the social media machine in whatever way they can. Friends use it to stay in touch and share their every waking thought with each other (and the world), politicians use it to show their tech-savvy and update constituents on their reactions to issues, and according to this Forbes article, celebrities are apparently now using it to bring trademark lawsuits, because… why not? Trademark lawyers weighing in for Forbes speculate that Katherine Heigl has a shot at winning a suit over an “unauthorized tweet” of her face in front of a drug store following in line with rights to publicity.
Katherine Heigl is best known for her roles in the TV show Grey’s Anatomy and the films 27 Dresses, The Ugly Truth, and The Big Wedding, and now is, ironically, gathering morepublicity for hiring trademark lawyers to represent her in her attempts to control her, uh, public image. Well, at least it’s a literal image “carrying two Duane Reade shopping bags,” paired with the tweet from drug store chain Duane Reade reading “Love a quick #DuraneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.”
The problem is the advertising, according to trademark lawyers and social media/publicity rights analysts. “To feature Heigl in one of their posts would undoubtedly lead some of Duane Reade’s followers to believe that she was a paid sponsor of the brand.” And while that line of logic is easy enough to follow, and everybody knows that celebrities (aka: #celebs, on Twitter) don’t “lend their name and likeness for free,” it may be a stretch for the public imagination to believe that tweet was worth $6 million. That’s how much Heigl is suing for.
Duane Reade exploited Heigl’s name and image for a commercial purpose without permission, bottom line, say analysts. Heigl’s trademark lawyers will likely argue that Duane Reade’s benefit was at her expense, though Duane Reade’s attorneys will likely be ready for a counter argument that it was “merely conveying to its followers that Heigl shopped at one of its stores, and there was no suggestion of an affiliation or endorsement.” But that may be a long shot for the way their tweet boldly phrased its 140-or-less characters.
#Celebs are a lawsuit-happy bunch, and with the stockpiled fortune from fame, are more likely than not to retain the best counsel money can buy. Which means that most of the time they win with any semblance of a valid legal claim. Social media is still new for a bunch of us, including corporations who are otherwise brilliant with advertising strategy. The caveat for Twitter? If you’re going to feature #celebs in tweets, maybe you should find a good @trademarklawyer and just check with them before hitting “send.”