June 23, 2008 / 3:41 PM / 12 years ago

Naked Cowboy lawsuit vs M&Ms maker to go forward

Tourists and members of the press photograph Robert Burck, a street performer known as the "Naked Cowboy", in Times Square in New York December 28, 2007. REUTERS/Lucas Jackson

NEW YORK (Reuters) - The $6 million lawsuit filed by the New York City street performer known as The Naked Cowboy against M&Ms candy maker Mars Inc can go forward on grounds of trademark infringement, a judge ruled on Monday.

Robert Burck — for 10 years a fixture in Times Square, who strums a white guitar while dressed only in white cowboy boots and hat and skimpy white underwear — filed the suit in February over video billboards depicting a blue M&M dressed in his signature outfit.

U.S. District Court Judge Denny Chin denied a motion to dismiss the lawsuit, ruling that Burck may proceed with his false endorsement claim, “for he plausibly alleges that consumers seeing defendants’ advertisements would conclude — incorrectly — that he had endorsed M&M candy.”

Chin dismissed Burck’s right to privacy claim, noting that New York law protects the name, portrait or picture of a living person but not that of a character or a role created by or performed by a living person.

Burck, who poses for photos with giggling tourists in return for dollars slipped into his boots, has trademarked his look and licensed his name and likeness to companies for endorsements and advertisements, including a Chevrolet commercial that appeared during a Super Bowl, the suit says.

In addition to Mars, Burck sued Chute Gerdeman Inc, the agency that created the ads with the Naked Cowboy M&M as well as ads with M&Ms dressed as other characters associated with New York, including the Statue of Liberty and King Kong.

Chin ordered attorneys for both sides to appear for a pretrial conference on July 11.

Reporting by Bill Berkrot, editing by Gerald E. McCormick

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