Naked Cowboy – Dilution or Parody

Robert Burck, the famous entertainer who parades through Times Square in his underwear, cowboy hat and guitar, trademarked his character in the entertainment field several years ago. Recently, CBS depicted a strikingly similar non-attired character, "Oliver", on spots to promote the Bold and Beautiful. Burke alleges that the Oliver character dilutes his mark because Oliver is portrayed in a "drunken and sexually charged manner." I would think CBS has an affirmative parody defense. I mean, would a reasonable (not drunk) person walk around Times Square in their underwear? Doesn't publically displaying yourself in your underwear say something about your sexual energy? Burck claims his character is all about good clean fun. So in order to find dilution the court would have to agree that good clean fun includes walking around in your underwear. But then CBS can argue that good clean fun also includes drinking and walking around in your underwear. No doubt the court will have to define those terms in order to find dilution. It seems likely that CBS could put forth a parody defense but the court may not be able to reconcile that with CBS's purchase of "The Naked Cowboy" search times from Google.

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