Time Square’s infamous Naked Cowboy, AKA: Robert Burck, claims the Naked Cowgirl is “devaluing a real American brand and icon.” Moreover, Burck says his competitor must pay him a franchise fee for wearing his proprietary “garb.”
That’s right. Some lawyer in Manhattan convinced a guitar player on the street to get litigious about someone stealing his completely unique uniform: a pair of underwear.
Based on my legal expertise, the courts will have an incredibly tough decision to make in this case. Does the naked cowboy own the trademark to naked? Does the naked cowboy owns trademark to cowboy? Does the naked cowboy own the trademark of playing the guitar on the streets? Or, is it a mind blowing and completely non-obvious combination of these devastatingly creative ideas which distinguish the naked cowboys trademark?
From a policy perspective, the courts will have to deal with bigger picture issues such as whether this opens the floodgates to trademark registrations for all types of combinations of doing something in your underwear in public. And, if those trademarks are legal, how much it will hurt the economy if we all have to pay licensing fees to do things in our underwear.
If you thought the Bilski case had far reaching implications for intellectual property, you better not blink as the naked guitar player showdown reaches high noon.
(This post previously appeared on Wall St. Cheat Sheet)
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