T.V. Personality Vanna White sues Samsung for right to privacy, right of publicity and trademark violation Cases of Interest >  IP >  Trademark Cases of Interest >  IP >  Trademark >  Rights of Publicity

White v Samsung Electronics America, Inc.

U.S. Court of Appeals for the 9th Circuit, 1992
971 F.2d 1395


Plaintiff, Vanna White, is a popular game hostess of “Wheel of Fortune” and has gained popularity by marketing her image to various advertisers. White brings suit against Samsung for an advertisement created by defendants for Samsung VCRs. The ad depicted a robot, dressed in a wig, gown, and jewelry that resembled White’s hair and dress. The robot posed next to a game board that closely resembled the Wheel of Fortune game show set, in a stance that imitates Plaintiff’s signature pose on the game show. Samsung has acknowledged that the ad is known as the “Vanna White” ad. White claims infringement of several IP rights, claiming she did not consent to the ads and was not paid for Defendant’s portrayal.


White sued Samsung for violation of right to privacy (under Section 3344 of the California Civil Code), right of publicity, and trademark infringement. The district court granted summary judgment against White for each of her claims. White appeals.


Right to Privacy:
Section 3344 states that any “person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, . . . for purposes of advertising or selling, . . . without such person’s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.” White claims Samsung used her “likeness” in violation of section 3344. The court, without delving further where an image such as robot might become “likeness”, decides that it was not a “likeness” under the meaning in section 3344.

Right of Publicity:
The court says that the district court erred in granting summary judgment to Samsung on White’s common law right of publicity claim. The court refers to Eastwood v. Superior Ct, which laid out 4 elements that may be pleaded for the common law right of publicity claim: (1) defendant’s use of plaintiff’s identity; (2) appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.

The district court granted summary judgment to Samsung under the belief that White would not be able to satisfy the second element, regarding “likeness.” The 9th Cir. states that the district court erred in granting summary judgment to Samsung because although Samsung avoided the most obvious means of appropriation of “likeness”, its actions came close enough and when viewed together, they “leave little doubt about the celebrity the ad is meant to depict.” Court says that if the celebrity’s image is commercially exploited, there is an invasion to the right of publicity, regardless of whether “name or likeness is used.” Deception is key is determining right of publicity and in this case, it is possible that jury could have found that Samsung appropriated White’s identity through its use of the robot in a blond wig, long dress, and noticeable jewelry.

Trademark Violation:
Court says that in order to succeed in a Lanham Act claim under §43(a), White must show that Samsung has created a likelihood of confusion regarding whether White is endorsing the product. Court examines the 8 factors listed in AMF, Inc. v. Sleekcraft Boats.

(1) strength of the plaintiff's mark – Court decides White’s “mark” is strong,

(2) relatedness of the goods – Court says in situations regarding celebrity endorsements, the “goods” concern the reasons for or source of the plaintiff’s fame. The court determines that White’s “goods” are closely related to Samsung’s VCRs.

(3) similarity of the marks – Court says this factor is not clearly advantageous to either party. Other factors must take priority.

(4) evidence of actual confusion – White lacks actual evidence of confusion

(5) marketing channels used – robot imitates a post White has famously used. The ads were placed in magazines, pointing toward a likelihood of confusion.

(6) likely degree of purchaser care – Court says consumers are not likely to pay special attention to who endorses VCRs, thereby increasing likelihood of confusion on which celebrity is actually endorsing the product.

(7) defendant's intent in selecting the mark – Samsung intended to make a profit from utilizing White’s identity. Samsung claims a parody defense, however the court says that the spoof was passive and did not outweigh Samsung’s clear intent to confuse consumers about endorsement

(8) likelihood of expansion of the product lines – not applicable in this situation.

Court says these factors show that district court erred in granting summary judgment to Samsung under a trademark infringement claim.


J. Alarcon disagrees that White has right of publicity of Lanham Act. He says there was no appropriation of a name of likeness. If anything, the ad appropriated a role that White plays on a television show, not her actual identity. The representation of those attributes does not constitute a representation of White. He argues that the robot’s depiction would not lead a reasonable person to view the robot as White. Judge points out that in CA, many women are blond, attractive, and graceful. Likewise, these are common attributes among game show hosts, models, singers, etc. Thus, they are not unique to White’s identity.

Additionally, J. Alarcon rejects the majority’s decision to deny the parody defense, stating that those who have successfully parody defense likely made the parody with the purpose of selling their products.

J. Alarcon says the problem with the majority’s decision is that it seems to allow any famous person or entity to bring suit based on any commercial advertisement that depicts a character or role performed by the plaintiff.

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