What’s in a name? – Two timely questions of identity and personality rights

July 6, 2011

For the past few weeks, my mind has been trained on the intersection between personality/publicity rights and trademark rights.  Initially I was inspired by events in my own life, but headlines have fueled further internal debate on the subject.  Currently I’m focused on two interesting and completely unrelated cases regarding the names of individuals: DJ Paulie vs. Pauly D and Rick Santorum vs. Google.  Each poses a compelling question.

In the case of Pauly D, I am left asking myself, “Does an individual own an unabridged right to use their birth name or a obvious derivative of their name in business?”  Currently Paul Lis aka DJ Paulie asserts that Paul “Pauly D” DelVechhio of the Jersey Shore is infringing upon his registered trademark and causing him to lose work.  Additionally, last year when Pauly D sought to trademark his name, the USPTO denied Mr. DelVecchio for a likelihood of confusion.  Nothing outright prevents the registration of similar or identical marks so long as it can be show that the two marks won’t create a likelihood of confusion.  Also, DJ Paulie doesn’t seem to assert that Pauly D is creating any level of confusion, but he does claim that the Jersey Shore star is diminishing the fame of his mark.

It is my personal opinion that the likelihood of confusion between Pauly D and DJ Paulie is minimal.  The DuPont Factors identify multiple criteria that must be examined in order to find a likelihood of confusion beyond name similarity including the fame of the prior mark, products displaying the mark, and the condition under which goods baring the mark are purchased.  DJ Paulie appears to be a cookie-cutter internet radio station with a moderate sized social media reach.  Whereas, Paul DelVecchio has created an enormous brand surrounding his nickname due to his reality TV appearances.  Ultimately, I believe this case hinges on consumer sophistication.  With the boom of social media, listeners have access to more music and entertainment than ever before in the history of man, and with that, comes a heightened sense of individuality of taste.  Whatever you want to hear can be found almost in an instant, so today’s listeners aren’t prone to making impulse purchases regarding music as they once were.  With that being said, I don’t think anyone would confuse a middle-aged internet radio DJ with a young reality TV celebrity that happens to deejay in clubs for additional income.

The second question is what right does an individual like Rick Santorum hold in fighting a Google bomb.  Eight years ago, Rick Santorum infuriated an individual with a negative comment towards homosexuality, and that internet user set out on a campaign to smear Santorum’s name by having it associated with an obscene situation.  Through an understanding of search engine optimization said user succeeded in making his new definition the top result when anyone Googled “Rick Santorum”.  There is very little you can say to dispute the internet as the primary disseminator of information in the modern world, and with Google being the leading search engine, this must debase the value of his name.

Because Rick Santorum is a public figure, he’s afforded very little protection in the way of personality rights, libel, and intentional infliction of emotional distress as counterbalances by First Amendment rights.  On the other hand, if Rick Santorum were a business or celebrity, I think he would have a potential claim under the personality rights of Indiana.  Indiana requires that a portion of a party’s personality be misappropriate in a commercial use.  To me, name is obviously at the core of personality.  If a non-political blogger chose to Google bomb an individual as was done to Rick Santorum, I think most attorneys could craft an argument that the Google bomb was commercial in nature and meant to bolster the career of the blogger.  Although I believe Rick Santorum has little recourse available to him, I think the situation poses an interesting question.

Per usual, this isn’t meant to be legal advice.  These are just my mental musings on a reoccurring subject.