Tom Waits is a professional singer, songwriter and actor particularly known for his raspy, gravely singing voice. To convey the quality of Mr. Wait’s voice, the Ninth Circuit opinion quoted a fan’s description, explaining that Mr. Wait’s voice is “like how you’d sound if you drank a quart of bourbon, smoked a pack of cigarettes and swallowed a pack of razor blades . . . late at night, after not sleeping for three days.”>
Naturally, a potato chip manufacturer would want to capitalize on such a vocal image. But Frito-Lay found itself sued by Tom Waits after its advertising agency hired a singer to imitate Tom Waits’ singing in a commercial.
In this case, the Ninth Circuit Court of Appeal held that the Federal Trademark Act (the Lanham Act) applies to false claims of endorsements by celebrities. In effect, the celebrity’s singing voice, visual likeness, or other distinguishing characteristics can be treated as his or her trademark, protected from implied endorsement of products by unauthorized impersonation.