Unfriend(ly) Lawyers, Unfollow Charlie

Charlie Sheen just might agree with Brendan Behan, who famously said “there’s no such thing as bad publicity [except your own obituary].”  Mr. Sheen has received wide, mostly negative, attention as of late.  So it’s no wonder that people are trying to ride his coattails, even if it is through the mud.

Apparently, Charlie Sheen’s “catchphrases” are WINNING, TIGER BLOOD, and ADONIS DNA (who else is frightened?).  Let’s take a quick trip to the USPTO, shall we?

I think Charlie Sheen will have a difficult time proving  trademark infringement or violation of his right of publicity based on use of the word WINNING.  There are 376 LIVE PTO records that include the word WINNING in the mark; most of these are multi-word marks.  Four different entities recently filed applications for just the word WINNING for: rubber or silicon bracelets, non-medicated skin tan darkening lotions and moisturizers, apparel, and ooh, another one for apparel.  The two apparel applications were filed one day apart, both as Intent to Use.  The application that was filed first was made by an attorney named Eric Croone on behalf of a company he owns, E. Croone & Associates, LLC.  I wonder what that’s all about.

TIGER BLOOD and ADONIS DNA (did I mention, I’m scared?) might be a little easier to claim trademark rights in and enforce if Sheen actually sold goods or services under them, as required under trademark law.  Since right of publicity restricts unauthorized third party use of someone’s name, image or likeness, Sheen will have to prove that these phrases are synonymous with him in order to succeed on a right of publicity claim.  There are ten(!) new trademark registration applications for TIGER BLOOD, the oldest of which was filed on March 3, 2011.  Of these, three are for apparel, four are for supplements and two are for energy drinks, all owned by different applicants, of course.  What a great example of the negative consequences of the week long lag time for applications filed with the USPTO — I bet each applicant’s PTO searches came up clean!

There are two newly filed applications for ADONIS DNA, one of which is owned by Harcos, a company that also applied to register TIGER BLOOD, both for supplements.  I have little doubt that Sheen’s attorneys will be coming after Harcos soon.  The promotional text on the product page for ADONIS DNA states, “Also available: Tiger Blood – RAWR!  Start WINNING!”  Thus, I don’t think their disclaimer is going to help much, “[p]lease note, Adonis DNA is not endorsed by any celebrity.  We are, however, endorsed by the full pantheon of Greek Gods.”  We’ll see how Marcos’ Greek Gods do against Sheen’s counsel, King, Holmes, Paterno & Berliner.

While I can maybe see why Sheen and his counsel would seek to protect TIGER BLOOD and ADONIS DNA, given their uniqueness and the obvious mooching by all the trademark applicants, I am perplexed by their pursuit of UNFOLLOW CHARLIE merchandise being sold on Zazzle.  Here’s a little background:  The Village Voice announced on March 7, 2011 that March 11 would be Worldwide Unfollow Charlie Sheen on Twitter Day.  One group of “girls and guys who want to raise awareness of domestic violence,” separately created a blog called unfollowcharlie with its own promotional merchandise.

The proceeds from unfollowcharlie merch benefit RAINN, a national non-profit whose mission is to: provide free, confidential services; educate the public about sexual violence; lead national efforts to prevent sexual violence, improve services to victims and ensure that rapists are brought to justice.  According to a Village Voice article last Friday, the unfollowcharlie logo was created by Michael Baxter, who sold products bearing this logo on Zazzle until the items were removed last Friday pursuant to a takedown notice from FEA, Live Nation’s merchandising company, which represents Sheen.  Zazzle’s response to Baxter’s query about the takedown notice is posted on the unfollowcharlie blog.  Apparently, later last Friday, Baxter connected with someone at Zazzle, who assured him that his unfollowcharlie works could continue to be sold on Zazzle, so long as the title, description, and keywords of the merch don’t include “Charlie Sheen.”  That makes sense, as I find it hard to believe that Charlie Sheen could claim any protection over the name Charlie.  He’s no Cher, after all.

Most perplexing to me is why Sheen and his counsel chose to pursue this case in the first place.  Not surprisingly, the press coverage of the case wasn’t favorable, which certainly doesn’t help Charlie rebuild his image.  Perhaps he just doesn’t care.  Perhaps being completely insensitive is his shtick.  Even still, why he would want to accomplishing that through high-priced LA entertainment counsel is beyond me.

Your reputation (aka goodwill) is built on how others perceive you.  Everything you do counts!  Including against whom and how you enforce your rights.  As my mom used to say, “Don’t put anything in writing you don’t want to see in the newspaper [or on the internet].”  Better be nice.  Or it may haunt you.