Tuesday, December 28, 2004

10th Circuit Pours Out Beerman

The 10th Circuit recently gave a Christmas present to Coors Brewing, which was exonerated of ripping off the "Bob the Beerman" character created by a locally-renown Coors Field beer vendor.

The plaintiff created a persona he called "Bob the Beerman," who used certain crazy antics and quips to sell beer at Rockies baseball games. The character got to be so well-known that Bob (a/k/a Robert Donchez) was able to snag several paying gigs to do his "Bob the Beerman" routine outside of cozy confines of Coors Field.

He tried to sell Coors on the idea, but you know the story. Coors wasn't interested, yada yada yada, but lo and behold, a few months later, Coors comes out with a bunch of ads featuring beer vendors with crazy antics and quips.

Bob the Beerman became Bob the Lawsuitman, asserting a six-pack of claims against Coors. The district court drained the Beerman out of court on summary judgment. Thirsty for another round of litigation, Bob went to see what legal principles the 10th Circuit had on tap.

In its opinion, the 10th Circuit quickly and understandably cold-filtered out his trademark and service mark claims for the term "beerman." But it seemed curious that the 10th Circuit didn't find the nose of the right of publicity claim more interesting. It held that the right of publicity doesn't extend to a character created by the plaintiff, but only to the plaintiff's own identity. Although this would seem to conflict with the Restatement's view (section 46, comment d), and also some of the case law out there, the result is that Bob got a mug full of foam.


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