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Former Mean Girl, Lindsay Lohan filed a lawsuit on March 8 in New York’s Nassau County Supreme Court against E-Trade alleging that the milkaholic baby, Lindsay, in E-Trade’s Super Bowl commercial is actually a portrayal of herself. Lindsay is trying to milk E-Trade for 100 million dollars in damages and an injunction to stop the airing of the commercial.
The commercial, which was considered by some to be one of the better Super Bowl commercials, can be seen here. The commercial includes the following, now controversial dialogue:
A baby boy is explaining to a baby girl that he did not call her because he was busy on E-Trade. The baby girl asks the baby boy, “And that milkaholic, Lindsay, wasn’t over?” The boy responds, “Lindsay?”, just before another baby girl pops into the screen and says, “milkawhat?”
Lohan began to sour when the commercial originally aired during the Super Bowl in February, and she tweeted, “Did that just happen?” Discussions that baby Lindsay was referring to Lindsay Lohan quickly heated up. Lohan’s lawyer, Stephanie Ovadia, argues that E-Trade is profiting by using Lohan’s single name recognition. Papers showing that Grey Group, E-Trade’s ad agency, changed the name from Deborah to Lindsay have added more fuel to the fire. Grey Group denies that the name “Lindsay” was chosen because of Lohan. Furthermore, E-Trade’s spokesperson responded to the allegations saying, “We believe the claims are without merit and we intend to defend ourselves vigorously in this case.”
Most likely, E-Trade is correct and the claims are without merit. An individual’s right of publicity gives a person the right to prevent commercial use of her name, likeness, and personality without permission. However, E-Trade likely did not violate Lohan’s right of publicity. The E-Trade Lindsay, being a baby, does not look similar to Lohan in any way. Accordingly, the only identifying characteristics from the 30-second commercial that could be compared to Lohan are the baby’s name and description as a “milkaholic”, seemingly an addiction to milk and the analogue to the adult version of the over-consumption of alcohol.
Lindsay will have to make the colorful argument that she is so well-known for having addictions that the term “milkaholic” was obviously referring to her. Considering she was arrested for driving under the influence in May 2007 and then again in July 2007, it is believable that the term “milkaholic” could describe Lohan. However, considering the large supply of celebrities with drug and alcohol addictions, the term “milkaholic” can not be argued to clearly identify Lohan.
Lohan’s lawyer argues that by using the name “Lindsay” in addition to the term “milkaholic”, E-Trade has successfully captured the persona of Lohan. However, this is ridiculous. The name “Lindsay” is nowhere near the caliber of a “Madonna” or “Shaq”, who are easily identified by a single name. “Lindsay” is an extremely popular name, and some estimate that there are over 70,000 Lindsays in the United States. This figure does not even account for all of the people using the alternate spelling, “Lindsey”. Since the name is so common, it is believable that it was selected without any thought of Lohan. More importantly, most viewers probably did not think of Lindsay Lohan while watching the commercial.
Consequently, Lohan probably has little chance of winning the suit. Despite the burden of defending against the action, E-Trade shouldn’t cry too heavily over this spilled milk as it has provided them with plenty of free advertising as people watch the debated commercial.
– Jenn Weizenecker
Tagged with: advertising • career • celebrities • commercial • contracts • courts • criminal law • e-trade • entertainment • film/television • financial • government • intellectual property • JETLaw • journalism • lawsuits • legislation • lindsay • lohan • milkaholic • privacy • publicity rights • social networking • sports • super bowl • technology • telecommunications • Twitter
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