There’s something about a sue-happy naked cowboy that makes the law fun! A famous New York street performer, Robert Burck is less famous for the country songs he sings for change and better known for wearing very little in the way of country western attire. Typically dressed in cowboy boots, a hat, and a pair of skimpy briefs, he has been attracting the attention of New Yorkers for the past ten years. He has also been featured in magazines, newspapers, and even a superbowl commercial for his unique approach to street entertainment.
In 2008 Burck sued Mars Candy for $6 million for dressing an M&M in a similarly scandalous cowboy outfit (hmmmm… not sure if that is possible to be a scandalous M&M, but that’s a whole other issue) and ultimately settled out of court.
If this suit was not a message to any potential imposters to be weary, he is back in court filing suit against perhaps his biggest threat yet—a naked cowgirl. Yes, there is a female naked cowgirl that he alleges is not only profiting off the image he worked hard to get but is also tarnishing it. In his court documents, Burck alleged that, ““She has been observed using visual profanity (flipping the bird at the camera) when photographing with people in Times Square. This is inconsistent with the manner in which the Naked Cowboy conducts business.” Burck claims that the naked cowboy idea is something that he trademarked in 2002 and has worked hard to present a wholesome and fun image. He has repeatedly asked her to pay a franchise fee and claims that taking her to court is his last resort.
The naked cowboy cases are quite entertaining and it is fun to hear him try to give a compelling legal argument about the importance of his “wholesome image” as a naked cowboy street performer. That being said, what he is alleging has some merit and I would not be surprised if he won his case against the naked cowgirl (yes, she has a real name but it is so much fun to refer to her as naked cowgirl). He is essentially claiming that he has suffered damages based on the use of his image without his permission and in doing so she has engaged in activities that have tarnished his image.
What can he gain from winning this case? As with more run-of-the-mill trademark infringement cases, the naked cowboy can recover monetary damages, lost profits resulting from the infringement, accounting for the infringer’s profits, an injunction, and attorney’s fees.
It is a shame that two people with a passion for performing on New York street corners in minimal cowboy attire cannot come together and create an even bigger act. Sigh. In any event, this is an interesting case to follow not just because it involves naked cowboys, but because it livens up what might be otherwise boring trademark issues.
By: Violet Petran