Today, word came down from a New York Court that one, Robert Burck (aka “The Naked Cowboy“), can proceed with his multimillion dollar copyright infringement lawsuit against M&Ms maker Mars, Inc., and its ad agency, for putting an M&M dressed as a Naked lookalike onto a video billboard at the M&Ms Times Square store without Naked’s permission.
The guitar-strumming Times Square entertainer who wears nothing but a hat, boots and a pair of tighty-whities (regardless of the weather) has become quite the pop culture celebrity, posing for photos with tourists, traveling the world, and, yes, being paid to do various endorsements and promotional appearances.
Burck did all the paperwork and registered The Naked Cowboy name and likeness, so the battle is on. We’ll see who ultimately wins the legal case, but certainly in the court of public opinion the sympathy vote goes to the cute guy in the underpants. So what’s a big corporation like Mars to do? It’s a classic David vs. Goliath situation. The standard “We do not comment on pending litigation” is pretty much all the company could say right now, should it comment at all – which at this point it is not.
But once the decision is in, what then? Win or lose, Mars will have an opportunity to publicly respond and, colorful story that it is, this will get a fair amount of national pickup. If the company loses, there’s not going to be a lot it will say publicly, and any response would likely sound very lawyer-ly. If the company wins, however, it faces a choice of how it positions itself. My advice: Be gracious; don’t come off as arrogant jerks trying to kick a popular character when he’s down. Ideally, inject a little humor into what others (except for Naked himself) will find a humorous, offbeat story. While in any company statement the lawyers will reinforce Mars’ position of being on the side of justice, a light touch is just what Mars should be shooting for in the surrounding copy. The M&Ms characters are cute and beloved, but they’re owned by a conglomerate and, lawsuit victory or defeat, they’re no match for the cute and beloved cowboy, owned by no one, with the strategically placed guitar.
