Marilyn Monroe Estate's Licensing Activities Alleged To Be a Monopolistic Sham

Movie nostalgia company looks to cancel trademarks and punish deceptive business practices.
Milton Greene

Last week, Forbes came out with its annual list of the top earning dead celebrities. Marilyn Monroe was sixth on the list with $17 million in income. That's not as great as Michael Jackson ($115 million), but still rather amazing for an estate that doesn't own the dead star's publicity rights.

How exactly does the Marilyn Monroe Estate rake in millions of dollars? According to a new court document filed by one company that specializes in vintage movie posters, calendars and other paraphernalia, the primary licensors for Marilyn Monroe have fraudulently registered trademarks, have made "sham" threats based upon "fictional" rights, and have attempted to monopolize the market for Marilyn Monroe, who "reinvented the concept of 'celebrity' and remains an icon of unparalleled caliber."

Tens of millions of dollars per year doesn't come easy — and the fight over Marilyn Monroe has lasted years.

The most contentious lawsuit at the moment comes in New York, where three years ago, the movie nostalgia company AVELA sued the Marilyn Monroe Estate for interfering with its own licensing activity. Those who control the estate brought counterclaims, and in late September, a federal judge allowed AVELA to be sued for violating "Marilyn Monroe" trademarks, ruling there was a difference between right of publicity and trademark claims.

But the dispute is hardly over. 

Now, another merchandising company, X One X Movie Archives, associated with AVELA and dragged into this dispute, has asserted its own counterclaims against the Marilyn Monroe Estate. This time, an attempt is being made to go the distance by cancelling trademarks and holding the Marilyn Monroe Estate liable for alleged monopolization and deceptive business practices.

The court filing on Friday (read here) says that when Monroe died in 1962, she bequeathed $25,000 to her personal secretary and divided the rest of her assets between her psychiatrist Dr. Marianne Kris and her acting coach Lee Strasburg. After those two died in the early 1980s, the estate landed in the hands of Strasburg's widow Anna and Aaron Frosch.

In 2010, after more events happened including legal fights with some prominent photographers, an entity named ABG is said to have purchased Marilyn Monroe LLC, registered trademarks and established themselves as The Estate of Marilyn Monroe LLC.

X One X regards this all as misleading, reporting that other entities own trademarks and copyright to Marilyn Monroe films and characters while the purported official estate run by James Salter works with Leonard Green & Partners to bully others and perpetuate the idea that it holds exclusive rights to Monroe.

Cancelation of trademark registrations is being sought on the grounds that contested marks (like "Marilyn Monroe") lack distinctiveness, only identify a deceased person rather than the source or origin of any product, and are purely functional in that they are used to describe a famous person in the public domain. The ABG group is also alleged to have made false statements to the U.S. Patent & Trademark Office to obtain trademark registrations.

The monopolization allegedly happens through a "a vertical scheme with its affiliate Leonard Green & Partners" such that "ABG assures licensees that their ABG-licensed Marilyn Monroe-related products will sell exclusively in retailers owned by Leonard Green & Partner," precluding lawful competitors.

The counterclaim goes on to say that a judgment in favor of the Marilyn Monroe Estate would perpetuate a monopoly and that it "would outlast any period of copyright, would usurp the right of the public (and X One X) to make commercial use of public domain images, and would enable the ABG Parties to unlawfully restrain any use of Marilyn Monroe’s image, likeness or name in commerce."

AVELA and X One X have a history of precedent-setting legal tangles that have defined the boundaries of intellectual property. Past battles include a skirmish with the Bob Marley estate and another with Warner Bros. This could be an even higher stakes legal fight with the potential of shaking up the Forbes dead celebrity earner list.

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