Post-relationship drama takes many forms, but federal court litigation under the Lanham Act isn’t typically one of them– unless you’re Miami Heat forward Chris Bosh. Bosh recently filed suit against the producer of VH1’s “Basketball Wives,” which, as Bosh correctly notes, comprises about as many ex-wives and/or girlfriends as it does “basketball wives” in the term’s purest sense.
At any rate, Bosh is claiming that his ex-girlfriend and the mother of his child is violating his trademark, publicity, and “life rights” by using his name/likeness in connection with the show. The lawsuit claims that “[the show] provides these women with a vehicle and worldwide platform” to use the names of players without permission for commercial gain.”
To make out a publicity rights claim under the common law, a plaintiff must plead and prove that a defendant “(1) used plaintiff’s identity; (2) appropriated plaintiff’s name and likeness to defendant’s advantage, commercial or otherwise; (3) lack of consent; and (4) resulting injury.” Eastwood v. Super. Ct., 149 Cal. App. 3d 409, 417 (1983).
To establish the statutory cause of action in California, the plaintiff must also show knowing use of the plaintiff’s name, photograph or likeness for commercial purposes, and a direct connection between the use and the commercial purpose. Id. at 417-18; see also Michaels v. Internet Entmt. Group, Inc., 5 F. Supp.2d 823, 837 (C.D. Cal. 1998).
Although there are some credible defenses here (the weakness of Bosh’s trademark rights in his name; First Amendment; and de minimis use), this case most likely will settle out of court.
In the meantime, despite his pleadings in court, Bosh probably isn’t losing too much sleep over Shaunie O’Neal. I’d imagine, for the time being, that distinction belongs to Kevin Garnett et al.