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Implausible on its face.
That’s the four-word summary of Hasbro’s response to Fox News anchor Harris Faulkner’s lawsuit over a toy hamster.
In September, Faulkner sued Hasbro, contending that a “Harris Faulkner” hamster in the toy company’s “Littlest Pet Shop” product line violated her likeness rights, “caused substantial commercial and emotional damage” and falsely implied her “association with, approval, and endorsement” of the toy rodent.
With the possibility of the situation turning into the biggest hamster scandal since Watergate, Hasbro isn’t offering much cheese.
In a partial motion to dismiss filed in federal court in New Jersey on Monday, the defendant showed the judge side-by-side photos of the fictional hamster toy and real-life adult woman and asked the judge to see that they share nothing in common.
According to the motion, “Because name-sameness is not enough to state a claim for a violation of one’s right of publicity under well-established law, and because Ms. Faulkner’s attempt to claim that the hamster toy misappropriates her likeness is implausible on its face, Ms. Faulkner’s Third Cause of Action alleging a violation of her right of publicity fails to state a claim for which relief can be granted and should be dismissed with prejudice.”
In her lawsuit, the six-time Emmy-winning journalist and host of Fox Report Weekend is contending that elements of the hamster toy “bear a physical resemblance to [her] traditional professional appearance, in particular [the] tone of its complexion, the shape of its eyes, and the design of its eye makeup.”
“First, Ms. Faulkner is an adult, African-American, human, female newscaster; the Hamster Toy is an inch-tall, cartoon-like plastic animal, which has no apparent gender or profession, or even clothing that might identify its gender or profession,” Hasbro responds.
“Second, contrary to Plaintiff’s allegation, the Hamster Toy does not have the same ‘complexion’ as Ms. Faulkner,” continues Hasbro. “The animal depicted by the Hamster Toy has ‘fur’ (not skin), which is golden yellow, a wisp of ‘hair’ that is medium-brown, a pink nose,and a muzzle that is white.”
“Third, despite Plaintiff’s claim, neither the ‘shape’ of the Hamster Toy’s eyes, nor the ‘design of its eye makeup’ misappropriate Ms. Faulkner’s likeness,” Hasbro puts forth. “Ms. Faulkner has brown, almond-shaped eyes; the Hamster Toy has large, circular blue eyes.”
And if that’s not convincing enough, Hasbro’s attorneys told the judge that Faulkner’s Fox News world is “so completely at odds with the Hamster Toy’s imaginary world of Littlest Pet Shop that the court should treat the stark contextual difference as a ‘minus’ factor warranting dismissal.”
Here’s the memo from Maura Wogan, Jeremy Goldman, Anna Kadyshevich and Beth Goldman at Frankfurt Kurnit.
Faulkner will now get a chance to respond. She could make the argument that Fox News and the imaginary world of toy hamsters share some commonality. Then again, it could be a trap.
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