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  • Writer's pictureTodd

Armless Palmer and Dead Billionaire: Living Person Consent (Trademark)



Armless Palmer and Dead Billionaire? What do these have in common and what do they have to do with trademarks?

 

If your trademark references the name, portrait, or signature of a living person, including yourself, you need to get the consent of that person.

 

Step one is to get the signed consent of the individual that states “I consent to the use and registration by [whomever is filing the application] of my name as a trademark and/or service mark with the USPTO.”

 

In the application you’d want to note that there is an element of your trademark that identifies and names a living individual whose consent is of record.

 

This can include author names, pseudonyms, DJ names (DJ ZEDD), musicians (JEREMY CAMP), etc.

 

Some KFC registrations with Colonial Sanders states: “The individual in the design is a representation of an actual person, namely, Harland Sanders, now deceased, whose consent is of record.”

 

Sometimes the mark doesn’t reference a particular individual, and you can say so. Take Shirley’s popcorn with an image of a person. “The name(s), portrait(s), and/or signature(s) shown in the mark does not identify a particular living individual.”

 

 You may also recall that there is currently a case before the Supreme Court that asks whether the refusal to register a mark for not giving consent of a living individual violates the First Amendment when the mark criticizes a government official or public official in the TRUMP TOO SMALL case.

 

Arnold Palmer's estate and Liquid Death recently had a spat. Arnold Palmer is the name of a beverage that is half tea and half lemonade.  Liquid Death claims that the estate of Arnold Palmer sent them a cease and desist saying they couldn’t use the word “Palmer” for their tea/lemonade drink. So, they changed the name of the beverage to “Dead Billionaire.” It’s the exact same drink, they say.



Screenshot of Liquid Death Instagram with picture of Dead Billionaire and Armless Palmer cans with the words "They wanted to sue us, so we changed the name."

 

Now, Arnold Palmer is not a living person anymore, so questions about the use of names of living or dead individuals aside, isn’t Arnold Palmer a generic term for half tea half lemonade? Some places may call it half-and-half, but you can order an Arnold Palmer in any restaurant in America and they’ll know what you want even if the source isn’t the Palmer estate.

 

Chick-Fil-A has its own registration for the drink, SunJoy.

 

Remember, you need consent if you're using a living individual as part of your trademark.


Please note that the information contained in this article is intended for general informational purposes only and not as specific legal advice. The facts of your situation may differ from this general information. It is not intended to and does not in any way establish an attorney-client relationship.


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