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Astaire v. McKenzie

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


June 8, 2010

ROBYN ASTAIRE, PLAINTIFF,
v.
PHYLLIS AVA ASTAIRE MCKENZIE, PATRICIA WATT, YARON GLUCKSMAN, AND CAREER TRANSITION FOR DANCERS, INC. DEFENDANTS.

The opinion of the court was delivered by: Cedarbaum, J.

OPINION

Robyn Astaire, the widow of the great dancer Fred Astaire who died in 1987, sues her step-daughter, Phyllis Ava Astaire McKenzie, Patricia Watt and Yaron Glucksman, two Broadway producers, and Career Transition for Dancers, Inc., a not-for-profit corporation that assists dancers in launching second careers. She sues to enjoin defendants from presenting the "Fred and Adele Astaire Awards." Specifically, the complaint alleges that defendants' use of Fred Astaire's name violates the Lanham Act, infringes a common law trademark, and violates the California right of publicity. For the reasons that follow, plaintiff's application for a temporary restraining order is denied.

Essentially, plaintiff claims a right of publicity in the name Fred Astaire. The Lanham Act does not create a right of publicity without either secondary meaning or likelihood of confusion, the essential elements of a trademark claim. Plaintiff has made no showing that an "Astaire Awards" presentation has acquired a secondary meaning. Plaintiff has not shown that consumers will be deceived into believing that the late Fred Astaire endorsed defendants' awards, which are described as "in tribute" to Fred and Adele Astaire. Accordingly, plaintiff has not shown a likelihood of success on the merits or irreparable harm from the presentation of an award in memory of two great dancers, Fred Astaire and his sister Adele.

For the foregoing reasons, plaintiff's application for the extraordinary relief of a temporary restraining order is denied.

SO ORDERED.

MIRIAM GOLDMAN CEDARBAUM United States District Judge

20100608

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