Plaintiff Barry Diller, the former Chairman and CEO of Paramount Pictures Corp and of Fox, Inc., is the current Chairman and Senior Executive of IAC/InterActiveCorp, a backer of Aereo, Inc., an internet-based broadcast television service operating in New York. Defendant Alki David is the founder of FilmOn.com, Inc., which provides a similar internet-based broadcast television service to Aereo. Alki created a website titled “Barry Driller” at the domain name barrydriller.com, which provided internet streaming services to compete directly with Aereo. The website featured a graphic of a fit, shirtless man holding a drill. Plaintiff sued Alki and his related companies for false endorsement under the Lanham Act and for state law violations of plaintiff’s right of publicity and sought a preliminary injunction to stop defendants from using the name “Barry Driller” in connection with their service.
The district court granted plaintiff’s motion for preliminary injunction, finding that plaintiff was likely to succeed on the merits of his claims because defendants’ use of the name “Barry Driller” created a strong likelihood of confusion. Plaintiff’s name was well known, especially among entertainment- and tech-savvy consumers, and defendants used an almost identical name to market a service very similar to the one sponsored by plaintiff. Defendants also intentionally used “Barry Driller” to evoke plaintiff’s identity and advertised their service in similar markets and through channels similar to Aereo’s.
Defendants argued that “Barry Driller” was a nominative fair use and a parody, which would defeat plaintiff’s Lanham Act claims, and that “Barry Driller” sufficiently transformed plaintiff’s name such that it did not violate plaintiff’s right of publicity. The court disagreed. First, “Barry Driller” was not a nominative fair use because defendants were not using plaintiff’s real name to refer to plaintiff. Rather, defendants added an “r” to plaintiff’s name and used it to refer to their internet service. Second, “Barry Driller” was not sufficiently a parody because there was nothing distinguishing plaintiff’s name from the source of the parody, either in the name “Barry Driller” or on defendants’ website. Instead, defendants used “Barry Driller” commercially to market their internet service. Third, defendants violated plaintiff’s right of publicity by using plaintiff’s name to market their internet service because defendants did not sufficiently transform plaintiff’s name to make it their own expression.
Because defendants’ continued use of the name “Barry Driller” created a likelihood of irreparable harm, and the balance of hardships and public interest factors weighed decisively in plaintiff’s favor, the court enjoined defendants from continuing to use the name “Barry Driller” in connection with their internet service.