Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From ETW v Jireh Publishing, 76 F.3d 743 (6th Cir. 1996) We hold that, as a general rule, a person's image or likeness cannot function as a trademark. Our conclusion is supported by the decisions of other courts which have addressed this issue. In Pirone v. MacMillan, Inc., 894 F.2d 579 (2nd Cir. 1990), the Second Circuit rejected a trademark claim asserted by the daughters of baseball legend Babe Ruth. The plaintiffs objected to the use of Ruth's likeness in three photographs which appeared in a calendar published by the defendant. The court rejected their claim, holding that "a photograph of a human being, unlike a portrait of a fanciful cartoon character, is not inherently 'distinctive' in the trademark sense of tending to indicate origin." Id. at 583. The court noted that Ruth "was one of the most photographed men of his generation, a larger than life hero to millions and an historical figure[.]" Id. The Second Circuit Court concluded that a consumer could not reasonably believe that Ruth sponsored the calendar:

[A]n ordinarily prudent purchaser would have no difficulty discerning that these photos are merely the subject matter of the calendar and do not in any way indicate sponsorship. No reasonable jury could find a likelihood of confusion.

Id. at 585. The court observed that "[u]nder some circumstances, a photograph of a person may be a valid trademark--if, for example, a particular photograph was consistently used on specific goods." Id. at 583. The court rejected plaintiffs' assertion of trademark rights in every photograph of Ruth