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One of our favorite stories about television comes from 1973, when Johnny Carson joked on “The Tonight Show” about an “acute shortage of toilet paper” in the U.S. Twenty million people watched the show, and the next day, panicked shoppers descended upon the nation’s supermarkets to grab as many rolls of TP as they could find.
This might explain why a maker of portable toilets has been in court for nearly 35 years with Johnny Carson — even after his death. A new ruling in the long-running battle could influence the intellectual property rights of celebrities.
In 1976, manufacturer Earl Braxton started “Here’s Johnny Portable Toilets, Inc.,” a Michigan-based company whose name seemed to derive from the famous phrase that introduced Carson each night. Carson sued, and in one of the first major cases over the misappropriation of a celebrity’s publicity rights, he successfully got the Sixth Circuit Court of Appeals to uphold an injunction against the defendant from using the phrase. Here’s the landmark 1983 decision.
Braxton never got over the loss. He sensed an opportunity to finally use “Here’s Johnny” when Carson died in 2005 and the trademark registration was canceled. Some states like California recognize post-mortem rights of publicity for dead celebrities, but not in the jurisdiction where the injunction was originally issued.
And so for his new company, Toilets.com, Braxton tried to register the “Here’s Johnny” mark for portable toilets.
Carson’s estate, the John W. Carson Foundation, reacted by filing a notice of opposition.
In a decision last week by the Trademark Trial and Appeal Board of the U.S. PTO, the panel of judges ruled in summary judgment that Braxton still can’t use the mark. The judges found that the injunction in the nearly 30-year-old case still stands, that Carson lived in California and thus enjoys post-mortem publicity rights, and that Braxton can’t escape the injunction just because he changed the name of his company to Toilets.com.
Some things in this world change. But others, like permanent injunctions and the use of toilet paper, remain the same.
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