Sunday, October 25, 2009

Trademark Infringement: Injunctions, Nude Pictures on Infringing Website, Protection for a Stage Name

Paola Miranda v. Eduardo Angel Perez Guerrero. 2009 WL 1381250 (S.D. Fla. May 14, 2009).

An injunction was granted in favor of Plaintiff because she proved likelihood of success on the merits of her Lanham Act Section 43(a) claim, she would suffer irreparable harm, the balance of hardships was in her favor, and the injunction would not disserve the public’s interest. Plaintiff was an entertainer and singer who employed Defendant to promote her. Defendant to nude photographs of Plaintiff under an agreement that they would get placed in Playboy Magazine. The photos were never featured in Playboy and Plaintiff discontinued the services of Defendant. Defendant kept the photos and posted them on a website with Plaintiff’s name as the domain name and under the appearance it was her official website.

First, Plaintiff proved likelihood of success on the merits n her Section 43(a) of the Lanham Act claim. It was undisputed in the record that Plaintiff used "Paula Morena" as her stage name since the beginning of her singing career. Lanham Act provides protection for Plaintiff's stage name because the Act protects "any word, name, symbol, or device,or any combination thereof used by a person ... to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source isunknown."15 U.S.C. s 1127 Plaintiff's use of the name "Paula Morena" not only identified her as a particular individual but, more importantly, identified her unique entertainment services. Since Defendant’s wife registered the domain name, there was a close enough relationship to hold Defendant liable as well. In addition, the domain name of, combined with designation of the site as the "official site," clearly misrepresent to the consumer and the public the site's "affiliation, connection, or association" with the entertainer Paola Miranda. The entire site is dedicated to the Plaintiff, featuring her pictures and news articles. Based on the unchallenged evidence given by Plaintiff, the court found that visitors to Defendant's website were likely to believe that Paola Miranda has sponsored or otherwise approved the contents of the site.

Second, Plaintiff proved irreparable harm, not only by likelihood of success on the merits, but also because the photographs Defendant posted on his website are inconsistent with and repugnant to the image that Plaintiff is seeking to project. The public is likely to develop a certain unwanted perception of the Plaintiff as an entertainer if she continues to be associated with the pictures posted on Defendant's website. Naturally, the public's perception about an individual, especially a celebrity, is difficult, if not impossible, to undo.

Third, The balance of the hardships is in Plaintiff’s favor because her reputation is at stake. Also, Defendant holds no rights to the photographs and will suffer no harm if the injunction is granted.

Finally, an injunction would not disserve the public interest. Preventing dissemination of false information and advertising is not against the public interest, but on the contrary serves the public interest.

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