It sounds like a scam, but I swear, there is some truth to this headline. Just ask Hasbro, Inc., the owner of the Littlest Pet Shop line of toy animal figurines. If you have never seen one before, below is an example of two of the pets:
That’s Benson Delwyler, who appears to be a dog, and Harris Faulkner, who is apparently a hamster. These are just two of the over 3,000 uniquely named pets that comprise the Littlest Pet Shop Collection. I even purchased a few of these as gifts for my nieces. I couldn’t tell you which ones though. I believe one was a turtle, but I certainly don’t remember their names; I doubt I even read the name at the time.
At least one person did pay attention to the name: Harris Faulkner, a Fox News journalist. How unhappy was she? Enough to file a federal lawsuit on Monday, August 31 seeking $5 million in damages. Ms. Faulkner claims that Hasbro’s use of her exact name amounts to false endorsement under the Lanham Act and violates her right of publicity (Complaint available here).
In addition to the use of her exact name, Ms. Faulkner alleges that
elements of the Harris Faulkner Hamster Doll also bear a physical resemblance to Faulkner’s traditional professional appearance, in particular tone of its complexion, the shape of its eyes, and the design of its eye makeup.
Ms. Faulkner claims that Hasbro’s actions are particularly damaging. First, she claims that Hasbro’s “portrayal of Faulkner as a rodent is demeaning and insulting.” Second, she notes that she does not endorse any products because “doing so would be a breach of journalistic ethics, would directly harm her professional credibility, and would be in violation of her contractual obligations to her employer.” Finally, she is particularly troubled that the toy is labeled as a “choking hazard” for young children.
But is there any merit to Faulkner’s legal claims? Section 43(a) of the Lanham Act protects the names of celebrities in a manner similar to trademarks. Liability may arise if the plaintiff can establish that the defendant’s use would cause consumers to mistakenly believe that the plaintiff has endorsed or approved the defendant’s goods.
Ms. Faulkner alleges vaguely in the complaint that she has “seen evidence of actual consumer confusion” already. If such evidence exists, it would obviously be very helpful. I have my doubts, however. Looking at the market for Hasbro’s toys, it seems unlikely that parents/adults would purchase any of the toys based on the name, other than whether their child already owns that pet. Children requesting or purchasing the toys seem unlikely to have any awareness of the names of cable news anchors.
Also, by Ms. Faulkner’s own admission, journalists don’t normally endorse products. This is different from sports figures, actors, and other public figures that regularly use their name and image to endorse and advertise products. Even if defendant’s customers did recognize the name, they may be unlikely to mistakenly conclude that Faulkner endorsed the product because there is no natural tendency to associate journalists with product endorsement.
Unlike false endorsement claims, a right of publicity claim does not require any false statements or implications. Instead, the defendant’s use must merely be sufficient for consumers to identify the plaintiff from the defendant’s use. Although the name is identical, there is also no other indicia that suggests that the name is a reference to Ms. Faulkner, the journalist. The toy doesn’t come with a microphone, camera, or notepad. While the complaint attempts to manufacture this indicia by referencing the complexion, eyes, and makeup of the toy, it seems like a stretch since all of the Littlest Pet Shop toys appear to have the same eyes and makeup.
Regardless of the merits of Ms. Faulkner’s claims, Hasbro is going to spend an appreciable sum either to settle or fight this dispute. This is unfortunate because Hasbro could have avoided the issue with some simple trademark clearance searches. Conducting a legal clearance search is always a best practice. However, if there are simply too many product lines to have an attorney involved for each one, the marketing department should at least have a standard practice of a brief Google search to identify other companies, individuals, or products. A five second search would have revealed that “Harris Faulkner” is the name of a news anchor and television host for a national cable news network.
Even worse, I doubt Hasbro cares much about the name of the hamster, anyway. Perhaps Hasbro was using “Harris” as a clever way to sound like “Hairy.” And maybe someone on Hasbro’s marketing team was a big fan of the novel As I Lay Dying. But it is likely that the toy would sell just as well with any other name.
Luckily for Hasbro, this appears to be a unique situation. As of the publication date of this article, no “Whiskers Ryan” or “Meow Meow Milkone” has come forward with their own lawsuit. And as far as my childhood favorites go, I think any claims by the heirs of Leonardo da Vinci and Michelangelo would be time barred by now.