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On Friday, attorneys for Halle Berry told a judge that they were putting the finishing touches on a settlement with an Italian company called Toywatch S.p.A. and its brand agents. The deal would bring an end to a lawsuit filed in July 2013 as well as a provocative defense built around the implications of gifts that celebrities receive from hungry marketers.
The Extant star sued the defendants for allegedly violated her publicity and privacy rights, trademark and slogan by using her name and image to advertise and sell watches. The actress stated in her complaint she wouldn’t “voluntarily appear in print or other media for a company or product unless she carefully selects and believes in the company and product” and unless she is compensated appropriately.
As defense lawyer Chad Mandell put it at a hearing on June 26, “If she has long-standing relationships with people who are giving her gifts, and she knows that these individuals work for marketing companies, there may be at the very least an implied consent… that if she accepts the merchandise, she’s playing a marketing role.”
In his push for the actress’ communications, Mandell seemed to suggest that even such an event as Berry telling someone it was ok to post her photo with the product on Facebook would be relevant.
“Yesterday, I contacted somebody who I know gives gifts to Ms. Berry,” he said. “She sent me — I want to say ten pages or more of text messages between Ms. Berry and herself in which Ms. Berry is being offered gifts, in which Ms. Berry is soliciting gifts, in which Ms. Berry acknowledges that she has been photographed with gifts and says something like, ‘Yay, I’ve been photographed wearing this gift.’ Where she after having received a gift she’s asked would you be a fan for this person’s website or for this person’s merchandise. She says, ‘Yes, I will be a fan.’ This is a tip of the iceberg.”
At the hearing which discussed various scenarios including Berry accepting a dress to wear to the Oscars and Berry accepting something to wear to a place where paparazzi will be present, U.S. District Judge John Kronstadt responded that he was “not sold on the idea” that the practice of receiving gifts could be evidence of implied consent, but the judge seemed at least open to entertaining the argument, plus allowing the defendants to use it to counter Berry’s claims of being substantially damaged.
“It’s a pretty thin thread,” he remarked, “You have to make a big step from this sort of implicit semi-endorsement product placement… to the pure advertising use that is at issue in this case,” he said.
On Berry’s end, her attorney Douglas Mirell shrugged off all the talk about gifts to her client, saying, “It doesn’t necessarily absolve Toywatch of anything in terms of what they’ve done and how they’ve chosen to market her image.”
The “celebrity gift” defense will probably have to wait for another lawsuit. The parties told the judge today that they anticipate the settlement will be fully consummated by November 14. Berry would follow in Sandra Bullock‘s footsteps by suing and then settling with Toywatch.
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