<b>False Endorsement; Right of Publicity</b>

The U.S. District Court for the District of New Jersey preliminarily enjoined further distribution and ordered the recall of the book 'Legit Baller,' which features an allegedly unauthorized, prominent use of photographs of popular R&B singer/producer Marc Dorsey on its covers. But the court declined to order a recall of the defendant publisher's other books that included advertisements of 'Legit Baller.' Dorsey v. Black Pearl Books Inc., 06-2940(JAG).

Dorsey's claims include false endorsement under the federal Lanham Act and violation of right of publicity under New Jersey common law. Dorsey, who previously hadn't authorized his image to endorse any product, contended he was receiving many comments from people asking why he would associate himself with 'Legit Baller,' criticized by the New York Times in an article titled 'Their Eyes Were Reading Smut.' Pearl Books also used Dorsey's image in advertising pamphlets and on its Web site.

In considering Dorsey's Lanham Act claim, the district court, located within the U.S. Court of Appeals for the Third Circuit, relied on a test set forth in the Ninth Circuit's Downing v. Abercrombie & Fitch, 265 F.3d 994 (9^th Cir. 2001). Under this test, the district court explained in its unpublished opinion: 'With [the] evidence illustrating his extensive involvement in R&B music and African-American films, such as those produced and directed by Spike Lee, as well as his urban community service, Plaintiff has demonstrated that he is likely to establish that he is recognizable in the African-American community ' the same social segment at which Black Pearl has targeted Legit Baller.' The court further noted, however, that 'all arguments proffered by Plaintiff stress that he and his work and accomplishments are completely separate from, and unrelated to, the themes and content of the Book.' But the court decided: 'This Court finds that Plaintiff is likely to succeed on the merits of his Lanham Act claim; Plaintiff has established that he will likely prove that he owns a valid, protectable trademark in his likeness, and that Defendants' use of his likeness is likely to cause confusion as to whether he has endorsed or otherwise supported Legit Baller.'

The district court also found that Dorsey was likely to succeed on the merits of his right-of-publicity claim, considering that Pearl Books used his image for commercial gain. But the court limited its recall order to 'Legit Baller' by itself because 'a broad recall is not an appropriate remedy to impose on Defendants at this time. Defendants have proffered evidence that a recall of all books and materials containing Plaintiff's image would force Black Pearl, which is already operating at a loss, to dissolve.'

The U.S. District Court for the District of New Jersey preliminarily enjoined further distribution and ordered the recall of the book 'Legit Baller,' which features an allegedly unauthorized, prominent use of photographs of popular R&B singer/producer Marc Dorsey on its covers. But the court declined to order a recall of the defendant publisher's other books that included advertisements of 'Legit Baller.' Dorsey v. Black Pearl Books Inc., 06-2940(JAG).

Dorsey's claims include false endorsement under the federal Lanham Act and violation of right of publicity under New Jersey common law. Dorsey, who previously hadn't authorized his image to endorse any product, contended he was receiving many comments from people asking why he would associate himself with 'Legit Baller,' criticized by the New York Times in an article titled 'Their Eyes Were Reading Smut.' Pearl Books also used Dorsey's image in advertising pamphlets and on its Web site.

In considering Dorsey's Lanham Act claim, the district court, located within the U.S. Court of Appeals for the Third Circuit, relied on a test set forth in the Ninth Circuit's Downing v. Abercrombie & Fitch , 265 F.3d 994 (9 th Cir. 2001). Under this test, the district court explained in its unpublished opinion: 'With [the] evidence illustrating his extensive involvement in R&B music and African-American films, such as those produced and directed by Spike Lee, as well as his urban community service, Plaintiff has demonstrated that he is likely to establish that he is recognizable in the African-American community ' the same social segment at which Black Pearl has targeted Legit Baller.' The court further noted, however, that 'all arguments proffered by Plaintiff stress that he and his work and accomplishments are completely separate from, and unrelated to, the themes and content of the Book.' But the court decided: 'This Court finds that Plaintiff is likely to succeed on the merits of his Lanham Act claim; Plaintiff has established that he will likely prove that he owns a valid, protectable trademark in his likeness, and that Defendants' use of his likeness is likely to cause confusion as to whether he has endorsed or otherwise supported Legit Baller.'

The district court also found that Dorsey was likely to succeed on the merits of his right-of-publicity claim, considering that Pearl Books used his image for commercial gain. But the court limited its recall order to 'Legit Baller' by itself because 'a broad recall is not an appropriate remedy to impose on Defendants at this time. Defendants have proffered evidence that a recall of all books and materials containing Plaintiff's image would force Black Pearl, which is already operating at a loss, to dissolve.'