Oliveira v. Frito-Lay, Inc.

251 F.3d 56 (2nd Cir. 2001)

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Nature of the Case

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Facts

In 1964, P recorded 'Ipanema' accompanied by Stan Getz, as saxophone, and her then-husband, Joao Gilberto, on the guitar. The 1964 recording became world-famous. Frito-Lay (D) introduced a new product with an ad that shows several famous models reclining by a swimming pool. The 1964 Recording of Ipanema plays in the background. As the camera pans from one model to the next, each looks crestfallen that the bag of Baked Lays in her hands is empty. The camera moves on to Miss Piggy, also reclining by the pool, who has been eating the chips and passing the empty bags to the models while singing along with P's recording. A voice-over identifies Baked Lays, and adds, 'With one and a half grams of fat per one-ounce serving, you may be tempted to eat like a .' 'Don't even think about it!' interrupts Miss Piggy. D make sure it purchased a license to use the master recording from PolyGram Records. It paid more than $200,000 for all the licenses involved. D did not seek P's authorization to use it in the ad. P was the lead singer and was not involved in the production. She did not compose the music, write the lyrics, or produce the recording. When recording the song, she did not sign any contract or release with the recording company or the producers; and she was not employed by them. P claims that as the result of the huge success of the 1964 Recording, and her frequent subsequent performances of 'Ipanema,' she has become known as The Girl from Ipanema and is identified by the public with the 1964 Recording. She claims she earned trademark rights in the 1964 Recording, which she contends the public recognizes as a mark designating her as a singer. P sued D for 'false implied endorsement' under Section 43(a) of the Lanham Act. P filed a second amendment for 'capitalizing on Ps valuable reputation and goodwill' in a way 'likely to cause confusion or to deceive as to the affiliation, connection, or association, or as to the sponsorship or approval.' D also raised a claim of trademark dilution under Section 43(c). Ds moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss all the claims, except the one under Section 43(a) of the Lanham Act. It was granted and Ds then moved for summary judgment on the remaining claim under Section 43(a) of the Lanham Act. The court found that that 'no reasonable jury could find for P on her claim of implied endorsement.' D appealed.