As the world gets ready for Hollywood’s Pelé: Birth of a Legend, the film’s namesake is suing Samsung for misleading advertising. Pele’s $30 million lawsuit contends that Samsung knowingly used a man who “closely resembles” the Brazilian icon in a major marketing campaign. Pele’s suit follows a $8.9 million victory last year by Michael Jordan over grocery store Dominick’s that used the basketball star’s name and famous black and red Number 23 without permission on its ad for a $2-off steak coupon. It might come as no surprise that the attorney Pele has secured for representation in the suit was the same one Jordan used against Dominick’s.
Samsung looks doomed in the Pele case—especially considering the ad was published just after the South Korean tech giant’s negotiations with Pele abruptly ended. With that knowledge, it looks like Samsung decided to go ahead with its plans to use Pele as a paid spokesman without the pesky part in which the brand actually had to pay Pele.
Preying on consumer confusion by suggesting a celebrity endorsement is hardly new. In fact, in recent years, the US has seen an outbreak of political ads using a voiceover that is without question meant to suggest velvety-voiced Hollywood star Morgan Freeman. While the law that governs these things—The Lanham Act—is not always clear, in both the Jordan and Pele cases, it’s on the celebrity’s side. The civil action outline for defining “false designations of origin, false descriptions, and dilution forbidden” reads:
“(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities…”
Pele’s suit against Samsung is pretty easy to digest. Where things get messier is when brands and companies use images and likenesses that are somewhat in the public sphere.
— Paul Szoldra (@PaulSzoldra) April 9, 2014
A perfect example of how confusing these situations can get came in 2014 when actress Katherine Heigl sued pharmacy Duane Reade after the retailer tweeted a picture of the star coming out of a Duane Reade store carrying Duane Reade bags. Even professionals hem and haw about examples like Heigl’s.
Maybe considering her war chest of endorsements, Heigl reasoned there was an easier way to resolve the matter and dropped the $6 million suit. Her representatives stated that she and the pharmacy “worked out a mutually beneficial agreement.”
It doesn’t help that in an attempt to protect intellectual property, brands often go overboard resulting in the kind of outrage that makes for headlines that spread like wildfire on social media. A perfect example of this came in 2011 when Kellogg, on behalf of its Toucan Sam mark, sued California nonprofit Maya Archeology Initiative more or less simply because the latter had a toucan in its logo. To the average consumer, the toucans did not appear even remotely alike.
When people learn about suits like these, one common reaction is to frown at the rich and famous for punishing a company that was maybe not as careful as it should have been. Or that the use of the image in question was “not that big a deal.”
It would behoove celebrities and those with valuable names worth protecting to make boilerplate statement for all lawsuits explaining the technical reasons why protecting a name is important. Otherwise, lawsuits like Pele’s and Jordan’s hit the news cycle and make those celebrities out to be petty and vindictive. After the verdict that more or less put Dominick’s out of business, Jordan made puns with reporters about the “court.” Ironically enough, if celebrities aren’t careful, their suits to protect name value may serve to further devalue the very names they are trying to protect.