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Fiona Versus the Counterfeiters: What About Her Rights?

As Fiona the hippo, at the Cincinnati Zoo, battled from being born six weeks premature to weighing 375 pounds with a healthy side of sass, she gathered a huge and fierce following.  #TeamFiona has taken the world by storm.

But not everyone is on her side. In addition to authorized Fiona products that help support the Zoo (such as Fiona beer, playing cards, and T-shirts), it appears that there are unauthorized products being sold by people simply trying to line their own pockets.  The Zoo's blog states, "Please be aware that there are many companies that are claiming to sell our #TeamFiona design t-shirts. We believe these are scams and will only take your money."

And Amazon has dozens of what appear to be unauthorized products.

What is up with these counterfeiters? Doesn't Fiona have rights?

Well, when humans are famous and someone uses their image without permission, they have legal tools to protect themselves.  Sometimes they can file a lawsuit for invasion of privacy, although it has its limitations when you live in the public eye.  One famous case in this area was  a claim by Jackie Onassis against a very aggressive member of the paparazzi.

Other times, people may be able to protect their "publicity rights" – the right not to have your name and likeness used commercially without your consent. An example of this is when Johnny Carson sued "Here's Johnny Portable Toilets" – no joke.

But Fiona is in a tough spot. Cases engaging with animal fame are rare, but at least one state court has found no right of privacy (for the animal or its owner) in a suit about an unauthorized photo of an "Appaloosa horse." Bayer v. Ralston Purina Co., 484 S.W.2d 473 (Mo. 1972).

And when a federal court was asked in 1997 about unauthorized paintings of famous racehorses ("Cigar," "Secretariat" and "Ruffian"), the judge found that it was a new question: "[T]he Lanham Act has never been invoked to protect the name or likeness of any animal, including famous dogs, cats or race horses." Cortez v. CMG Worldwide, 962 F. Supp. 308, 311 (N.D.N.Y. 1997).  (The Lanham Act is a federal law that pertains to trademarks and unfair competition.)  The judge in this case said that no court anywhere had yet "recognized unregistered trademarks or trade dresses in the form of race horse names, images or racing silks." Id. He let the case proceed.  But then the parties did not pursue it, and it ended without any decision!

At the end of the day, the hippo-thetical situation of Fiona suing on her own behalf is not likely to become a reality. But it is still an open question whether the Cincinnati Zoo has "unfair competition" claims that it could use to combat counterfeit Fiona merchandisers.  And it is also possible that the Zoo could register her name as a federal trademark if it tried.

Prior to Fiona coming on the scene, some other companies had applied to register the plain word trademark "FIONA" with respect to handbags, contraceptives, audio equipment, clothing and accessories, and media production services. (You can search registered trademarks here.)  There are options to consider.  The Cincinnati Zoo could apply to register the "FIONA" mark for different goods and services, such as entertainment, toys and games.  And it could try to work out an agreement with some of the other companies, such as the one that registered "FIONA" for clothing and accessories.

Another idea is that the Zoo could add a logo or other accompanying words to differentiate their trademark from the plain word "FIONA." For example: as of now, neither the Zoo nor anyone else has tried to register "TEAMFIONA."

One sure thing is that if this ever goes to court in Cincinnati, there is no way they will ever find an impartial jury. You can't look at that hippo, and know her story, and not be on her team!

This blog was also co-authored by KMK Law Summer Associate Melanie Cheek.

KMK Legal Alerts and Blog Posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. Please consult with counsel of your choice regarding any specific questions you may have.

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