Etw Corporation v. Jireh Publishing, Inc.

332 F.3d 915 (6th Cir. 2003)

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Nature of the Case

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Facts

ETW Corporation (P) is the licensing agent of 'Tiger' Woods. Woods, assigned to it the exclusive right to exploit his name, image, likeness, and signature, and all other publicity rights. P owns a United States trademark registration for the mark 'TIGER WOODS' (Registration No. 2,194,381) for use in connection with 'art prints, calendars, mounted photographs, notebooks, pencils, pens, posters, trading cards, and unmounted photographs.' Jireh Publishing, Inc. (D)is the publisher of artwork created by Rick Rush ('Rush'). Rush, who refers to himself as 'America's sports artist,' has created paintings of famous figures in sports and famous sports events. A few examples include Michael Jordan, Mark McGuire, Coach Paul 'Bear' Bryant, the Pebble Beach Golf Tournament, and the America's Cup Yacht Race. D has produced and successfully marketed limited edition art prints made from Rush's paintings. Rush created a painting entitled The Masters of Augusta, which commemorates Woods's victory at the Masters Tournament in Augusta, Georgia, in 1997. The painting was clearly of Woods. The limited-edition prints are enclosed in a white envelope, accompanied with literature which includes a large photograph of Rush, a description of his art, and a narrative description of the subject painting. D published and marketed two hundred and fifty 22 1/2 ' x 30' serigraphs and five thousand 9' x 11' lithographs of The Masters of Augusta at an issuing price of $700 for the serigraphs and $100 for the lithographs. P filed suit alleging trademark infringement in violation of the Lanham Act, 15 U.S.C. § 1114; dilution of the mark under the Lanham Act, 15 U.S.C. § 1125(c); unfair competition and false advertising under the Lanham Act, 15 U.S.C. § 1125(a); unfair competition and deceptive trade practices under Ohio Revised Code § 4165.01; unfair competition and trademark infringement under Ohio common law; and violation of Woods's right of publicity under Ohio common law. D counterclaimed, seeking a declaratory judgment that Rush's art prints are protected by the First Amendment and do not violate the Lanham Act. Both parties moved for summary judgment. The district court granted D's motion for summary judgment and dismissed the case. P appealed.