Astaire v. Astaire McKenzie et al, No. 1:2010cv04305 - Document 6 (S.D.N.Y. 2010)
Court Description: OPINION: For the foregoing reasons, plaintiffs application for the extraordinary relief of a temporary restraining order is denied. (Signed by Judge Miriam Goldman Cedarbaum on 6/8/2010) (jpo)
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UNITED STATES DISTRICT COURT SOUTHERN DI STRICT OF NEW YORK ----------------------------------X ROBYN ASTAIRE, Plaintiff, -against- OPINION 10 Civ. 4305 (MGC) PHYLLIS AVA ASTAIRE MCKENZIE , PATRICIA WATT , YARON GLUCK SMAN , and CAREER TRANSITION FOR DANCERS, INC. Defendants. ----------------------------------X APPEARANCES: CAPLAN AND ROSS, LLP Attorneys for Plaintiff 270 Madison Avenue, 13th Floor New York, NY 10016 By: Brian D. Caplan, Esq. Jonathan J. Ross, Esq. HOGAN LOVELLS US LLP Attorneys for Defendants 875 Third Avenue New York, NY 10022 By: M. Veronica Mullally, Esq. Lani Questembert, Esq. Cedarbaum, J. Robyn Astaire, the widow of the great dancer Fred Astaire who died in 1987, sues her step-daughter, Phyllis Ava Astaire McKenzie, Patricia Watt and Yaron Glucksman, two Broadway producers, and Career Transition for Dancers, Inc., a not-forprofit corporation that assists dancers in launching second careers. She sues to enjoin defendants from presenting the Fred and Adele Astaire Awards. Specifically, the complaint alleges that defendants use of Fred Astaire s name violates the Lanham Act, infringes a common law trademark, and violates the California right of publicity. For the reasons that follow, plaintiff s application for a temporary restraining order is denied. Essentially, plaintiff claims a right of publicity in the name Fred Astaire. The Lanham Act does not create a right of publicity without either secondary meaning or likelihood of confusion, the essential elements of a trademark claim. Plaintiff has made no showing that an Astaire Awards presentation has acquired a secondary meaning. Plaintiff has not shown that consumers will be deceived into believing that the late Fred Astaire endorsed defendants awards, which are described as in tribute to Fred and Adele Astaire. Accordingly, plaintiff has not shown a likelihood of success on the merits or irreparable harm from the presentation of an award in memory of two great 2 dancers, Fred Astaire and his sister Adele. For the foregoing reasons, plaintiff s application for the extraordinary relief of a temporary restraining order is denied. SO ORDERED. Dated: New York, New York June 8, 2010 S/______________________________ MIRIAM GOLDMAN CEDARBAUM United States District Judge 3
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