Insurance giant Aflac recently parted ways with celebrity voice actor Gilbert Gottfried after he comments he made about the Japan crisis.  Gottfriend had long provided the shrill but persistent voice of the Aflac duck.

So with a muted spokesduck, what does Aflac do next?

From Tom Galvani:

It is highly unlikely that the split with Gottfried left the permissible use of the mark in question.  DuetsBlogs just has to be right about that: a company with that level of business acumen likely had many strategies thought out in advance.  Aflac is clearly the registered owner and likely has the right to use the mark.  It is extremely doubtful that Gottfried contracted with Aflac to remove their ability to use his voice after his engagement ended.  Nevertheless, who knows what goes behind closed doors and contracts.

I agree with Tom’s gut reaction– it is unlikely that Gottfried has any contractual rights that he can assert against Aflac for use of his voice, given that his employment is terminated.  But what about IP rights?  What, if any, right of publicity claims would Gottfried have in the absence of his contractual rights (assuming, for sake of the argument, that Aflac wanted to use his voice)?

Tom Waits successfully asserted publicity rights in his voice, even when it wasn’t actually his voice being used.

So what rights does Gottfried have here?  Obviously, he has rights in his own voice.  But what about the Aflac spokesduck character?  Clearly, there is a registration that covers the duck as a design mark, but that most likely doesn’t cover the character as a whole.  For example, let’s say the spokesduck appears in a movie.  Alfac would have a decent case for dilution, but what about Gottfried?  Has he created any publicity rights in the spokesduck character that extend beyond his voice?

These are very hypothetical questions, and this issue should quickly be disposed of by Aflac’s PR/Marketing types.  I will say one thing, however, if I write “spokesduck” one more time, I’m afraid I might start to develop anatidaephobia.

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