In Naked Cowboy vs. Clear Channel Communications, who has trademark rights?
Wake up and good morning. Even the Naked Cowboy has rights. At least that's the pitch from New York where Times Square’s “Naked Cowboy” street performer Robert Burck has sued Clear Channel Communications Inc., claiming its 93.3 FLZ radio station in Tampa infringed his trademarked image by creating and promoting an impostor.
Keep in mind that Burck is a guitar player who performs wearing only a cowboy hat, boots and white briefs, while Clear Channel is the dominant player in the Tampa Bay radio market, and runs more than 1,200 radio stations nationwide. As for this photo, it was taken in Tampa when Burck was down to entertain before a recent Super Bowl. (Photo by Daniel Wallace of the St. Petersburg Times.)
Now I've had the, uh, pleasure of witnessing Burck perform in Times Square. It was during the Republican National Convention in 2004, which I helped cover for the St. Petersburg Times. Burck was a regular, a standout, so to speak, in Times Square which at the time was awash with street performers. He definitely had an audience. It's a good ol' fun performance and usually ends up with lots of tourists (mostly women) getting their picture taken with him.
The legal case is Robert Burck d/b/a The Naked Cowboy v. Clear Channel Communications, 09-cv-2560, U.S. District Court, District of New Jersey (Newark). Burck claims 93.3 FLZ created its own naked cowboy character who has appeared in videos and made promotional appearances. (But good luck finding that character on the Internet.) This photo (courtesy of the Naked Cowboy) shows the real Burck performing at The Pier in winter in St. Petersburg in 2004.
Does beefcake Burck have a legitimate claim? It seems legit to me though Clear Channel's being mum on the matter so we don't know their stand on the matter. Clear Channel is based in San Antonio, Tex., and is owned by Bain Capital LLC and Thomas H. Lee Partners LP. Clear Channel lost nearly $88 million in the first quarter of this year.
Bay News 9 asked its audience: Do you think the Naked Cowboy should be allowed to trademark his signature look? The response, shown here, was split almost down the middle. Is there a lesson here? Mama, don't let your babies grow up to be (naked) cowboys. Unless they get a good lawyer.
-- Robert Trigaux, Times Business Columnist