Hi, and welcome back to Legal Geek. This week, we review the interesting case of Arnold Palmer as a brand covering the half iced-tea, half lemonade drink, following up on the discussion and inquiry from last week's main Current Geek show.
There's nothing more refreshing in the summertime than iced tea and lemonade, and Arnold Palmer has been personally ordering a mix of these drinks since his golf-playing heyday in the 1960s. Indeed, as Scott and Tom pointed out on the last Current Geek, his name has become synonymous with this drink in many places. He even licensed his likeness and signature to Arizona brewing company to bring out a line of tea/lemonade drinks. But how enforceable are any branding rights Arnold Palmer may have in this drink, and can he enforce them against another drink company or against your local restaurant or bar putting this drink on the menu?
The short answer, as always, is that this is complicated. There are two sets of rights at play here, one being traditional trademark rights and the other being rights of publicity, also known as personality rights. There's of course no patent rights blocking companies from offering half tea half lemonade drinks on the market, like the competitor Lipton has done to Scott's delight, so long as there's no association made with the name Arnold Palmer.
Turning first to trademark rights, Arnold Palmer's company registered his signature as a U.S. trademark for tea beverages over 10 years ago and this is what was licensed to make the Arizona drink that's still available in stores today. Interestingly, his company has also recently filed a couple of trademark applications on tea beverages covering his name as the trademark, rather than the more narrow and specific signature. One of these applications from early 2019 has already been granted. So Palmer's company is certainly trying to protect whatever trademark rights exist in this name.
However, one potential problem that Palmer will always face is genericization. Enforceable trademarks cannot be merely descriptive or generic terms for a good or service, and former brand names like Kleenex, Velcro, and escalator are examples of prior marks that became generic terms and thus enforceable as trademarks. While Arnold Palmer as the identifier for this tea lemonade drink probably has not yet become widespread enough to truly be generic, that line could shift with time and could undermine any potential attempt by his company to enforce this as a trademark right.
Turning to rights of publicity, individuals have rights mostly under state law in the U.S. to prevent or control the commercial use of his name, image, or likeness. This can also overlap with rights granted by the U.S. federal Lanham Act that stop false designations of origin to prevent consumer confusion as to the source or sponsorship of goods on the marketplace. In short, Arnold Palmer has the right to control the use of his name and likeness on products in the marketplace, including tea lemonade drinks, especially where he has not sponsored or authorized the use of his name or likeness.
So how's this play out in the examples Scott and Tom presented? If Lipton or another drink company launched a bottled tea lemonade drink and put it in stores with Arnold Palmer's name or picture on it, such a company would almost certainly be sued for trademark infringement and for infringing Palmer's rights of publicity. Such a company would probably lose on at least one of the claims, making it risky to enter the marketplace in such a bold manner.
However, relative to local bars and restaurants identifying a drink as an Arnold Palmer or something similar like a Shirley Temple, there's a stronger argument to be made that this use is in a descriptive sense and is not falsely associating Palmer as the source of the drinks being served. Without consumer confusion as to the source of goods or a false designation of origin, the only right Palmer could probably assert in such a context is the right of publicity, and that's not likely to be enforced against every small restaurant or bar that chooses to identify the tea lemonade drink this way on a menu.
The Bottom Line is: Arnold Palmer has made a better living off promoting his name as a brand for various products after his golf retirement than he ever did playing professional golf, and he has taken steps to protect whatever interest he has in the tea lemonade drink market. So while he does have some enforceable rights in the name Arnold Palmer on drinks, and will continue to do so even after his death when that occurs, it's more likely such rights would only ever be used to stop the very largest infringements, such as a bottled drink in stores directly competing with his licensed products sold by the Arizona brewing company. Pragmatically, as long as some company is willing to pay to license his rights, Palmer will be able to make revenue off his name even if eventually he doesn't have much legal right to enforce, but that's not the case currently.
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