Court Recognizes the Right of Publicity and Sets Limits on Comparative Advertisements
In the landmark ruling of Aloniel Ltd. v. Ariel MacDonald the Israeli Supreme Court set out several important precedents including recognizing for the first time the right to publicity.
The case started from a television advertisement for Burger King featuring basketball star Ariel MacDonald. Aloniel, the Israeli McDonald’s franchise holder, countered by airing an advertisement quoting from an interview with MacDonald published a few years earlier in which MacDonald stated that he ate at McDonald’s. Aloniel’s counter campaign led to the cancellation of the Burger King campaign, and both parties sued each other.
Aloniel sued McDonald for infringement of the McDonald’s trademark, and McDonald sued, among other claims, for misuse of his publicity rights.
In a 2-1 split panel the Supreme Court accepted Aloniel’s trademark infringement suit. The majority held that although there was not a risk of consumer confusion, and even though McDonald made use of his real name, he infringed upon Aloniel’s trademark rights.
In reaching the above conclusion the court set limits on using competitors’ marks in advertisements. The court noted the importance of comparative advertisements, but stated that only advertisements that include a factual comparison of the products (quality, price etc.) are allowed, but advertisements that use competitors’ marks in a mocking manner.
The court unanimously recognized, for the first time, the right of publicity that is an economic right attached to celebrities’ persona. Since there is no specific statutory source for the right of publicity the court, after presenting the rationales for adopting the right of publicity, concluded that the right of publicity should be recognized as a branch of unjust enrichment law.
Although the court recognized the right of publicity as a legal right, the court dismissed McDonald’s claim due to the special circumstances, mainly airing the Aloniel ad only as a counter-campaign to the Burger King advertisment featuring McDonald.
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