Hasbro Inc.’s Littlest Pet Shop toy line features “miniature plastic animals with exaggerated features, such as large heads and eyes, and each figurine has a unique and individualized name.” For example, the line features a skunk named “Pepper Clark,” and a mongoose named “Sunil Nevla.”
In 2014, Hasbro introduced a hamster doll named “Harris Faulkner” into the toy line. Fox News Channel news anchor and commentator Harris Faulkner subsequently sued Hasbro for direct and contributory liability for false endorsement and unfair competition under the Lanham Act, and a violation of Faulkner’s right of publicity under New Jersey common law, alleging that Hasbro misappropriated her name, likeness, identity or persona for commercial purposes, and in doing so decreased the commercial value of her name and persona, impaired her ability to do her job, and harmed her professional marketability and brand.
Hasbro moved to dismiss Faulkner’s right of publicity claim, arguing that the right of publicity protects only the value of Faulkner’s identity — not her name — and that, “[o]ther than her contention that the Hamster Toy uses the name ‘Harris Faulkner,’ the Complaint contains no plausible allegations to support Ms. Faulkner’s claim that the toy identified her or otherwise trades on her identity.”
The district court denied the motion to dismiss, stating that plaintiff’s allegations, and Hasbro’s own statements, “establish that when a character like the hamster doll is used for what it is intended — play — it may take on new dimensions when it is linked up with and ‘becomes’ a real person.” The district court concluded that Faulkner was entitled to adduce evidence that “as a child plays inside this fictionalized, highly interactive world, s/he may see or put into the girl hamster doll named Harris Faulkner the identity, persona and characteristics of the real Harris Faulkner.” In the context of this “successful toy line ‘world,’” the court held, “Faulkner’s allegation that this doll bears her unusual celebrity name sufficiently pleads a violation of the right of publicity.”