This week, Black Sabbath rocker Ozzy Osbourne sent a cease and desist to a Baltimore-based brewery, Brewer’s Art. The letter involves a belgian strong ale the brewery refers to as Ozzy Ale. Had the “Ozzy” use been limited to the name, the C&D might have been a stretch. Here, however, the beer’s label art features an outstretched fist with O-Z-Z-Y spelled across the knuckles, just like the famous Ozzy’s real-life tattoo. The lettering/packaging is consistent with Sabbath-styled art, and the label also includes artwork of bats, a reference, no doubt, to the rocker’s certain onstage stunt.
We haven’t seen this dispute get picked up with too much commentary, and what commentary is out there tends to focus on potential federal trademark issues. It’s true that if consumers would likely be confused as to whether this beer originates from Ozzy Osbourne or is otherwise endorsed/sponsored by the rocker, there’s a trademark issue here. And, given the label art, the trademark claim has teeth. Had the brewery featured artwork of, say, a Black Lab with a story about their beloved childhood pet “Ozzy,” this sort of confusion claim wouldn’t be as tenable—of course, it would be important to know whether Ozzy-the-rocker holds a federal trademark and, if so, in what categories—if not, whether he has entered the beer or related markets. We can also imagine that Ozzy Osbourne’s C&D included a mention of trademark dilution, contending that his “Ozzy” mark is famous and this use on beer, even if unlikely to cause confusion, would dilute his branding firepower.
Potential Lanham Act claims aside, this is a good chance to mention another sort of right involved here that the C&D no doubt referenced: the Right of Publicity. Famous folks, and even you and I, have a right to exploit our likenesses for commercial advantage. One classic case in this area involves Samsung and Vanna White. In advertisements, Samsung was showing its VCRs (we said the case was classic) in futuristic settings. The ad depicted a robot dressed in a wig, gown, and jewelry specifically selected to resemble Vanna White’s hair and dress, and was posed next to a game board that’s instantly recognizable as the Wheel of Fortune game show set. The problem with the ad is that it wasn’t meant to depict just any letter-turning gal in a dress, it was meant to depict Vanna White; Samsung’s ad impermissibly appropriated her identity—at least enough so that the 9th Circuit overturned an earlier summary judgment entry in Samsung’s favor.
Turning to the Brewer’s Art and Ozzy Osbourne matter, it’s possible that Brewer’s Art genuinely wanted to pay homage to Osbourne and thought Osbourne’s spunky personality befit its fiercely spunky brew. But, good faith aside, the name along with the label art arguably went too far, capitalizing on Osbourne’s fame and/or perceived affiliation to help brand and sell the beer. Hopefully, the two sides can work this one out, because the label art is pretty rad, the beer sounds pretty good, and maybe the dispute’s publicity could be a win for all parties involved.