Despite a recent setback, a right of publicity lawsuit filed by the actress Brooke Shields against a cosmetics company and several major retailers will proceed in California state court.

Background

Shields filed suit in May 2019 against Charlotte Tilbury Beauty Inc. and several national retailers after she stumbled across an eyebrow pencil during a shopping trip that came in a shade titled “Brooke S.” According to Shields’s complaint, the use of “Brooke S.” in connection with the eyebrow pencil violates her statutory and common law rights of publicity under California law.

Shields argues that from the beginning of her career, her “bold eyebrows” have been a trademark of her look and a target for endorsements and collaborations. She notes that she collaborated with a different cosmetics company in 2014 to create a collection of beauty products, including an eyebrow pencil, and that she has not endorsed any cosmetics products since the 2014 line was released. In addition, she has taken steps to develop her own cosmetics line and notes that her brows have been the subject of various media profiles, including an article in Vogue magazine entitled 17 Times Brooke Shields’s Eyebrows Were the Best Thing in the Room.

Notably, the allegedly infringing eyebrow pencil does not use Shields’s full name. In addition, the product is sold under a different brand name, “Brow Lift,” that makes no reference to Shields. Rather, “Brooke S.” is used merely to refer to the name of one shade of the pencil. Based on these facts, Shields is seeking punitive damages, actual damages, disgorgement of profits, and attorneys’ fees from the manufacturer and retailers.

Punitive Damages Claim

Recently, the state court judge overseeing the case granted the defendants’ request to strike Shields’s claim for punitive damages after finding that she had failed to plead her claim with sufficient specificity. Nonetheless, the court is allowing Shields to amend her complaint as the case continues with respect to her additional claims.

Takeaway

Shields’s lawsuit is another cautionary tale for brands that like to feature or reference celebrities in their marketing. Whether its Brooke Shields, Lindsay Lohan, Michael Jordan, or Katherine Heigl, celebrities have shown repeatedly in recent years that even allusions to celebrity names or likenesses can lead to litigation. For this reason, the safest options when it comes to celebrities and advertising are either to seek permission or leave them alone.