Legal Fight At The Times Square Corral

It is not often that we encounter the confluence of law, politics and entertainment. When we do, we’ve just got to write about it. To quote that great philosopher and social commentator, Jay Leno, “you can’t buy material like this.” (Naked Cowboy v. Sandra Brodsky)

For the benefit of those of our readers who neither read newspapers, watch the news shows on television nor live on the planet Earth, the Naked Cowboy is an individual, named John Burck, who appears in various locales – most notably in Times Square, New York – dressed only in cowboy boots and hat and underpants (tightie whities, not boxers), playing a guitar and generally making a nuisance of himself.

Apparently, New Yorkers consider this to be “entertainment” to the extent that Mr. Burck claims to earn “no less than $100/hr.” based, in part, on his “enormous amount of public exposure.” (We are not making this up.) Indeed, his “business” is going so well, that he has registered the trademark, “The Naked Cowboy,” and sells franchises - $5,000 per year or $500 per month – to others who agree to comply with the terms of his nine (9) page Naked Cowboy Enterprises Franchise Agreement. “Franchisees are required to have training and are informed as to how to conduct and comport themselves so as to uphold the quality, propriety, integrity, and reputation of the Naked Cowboy brand.”

Enter Ms. Sandra Brodsky, a/k/a Sandy Kane, a woman who asserts that she “has been performing naked or semi-nude for more than four decades.” For the past couple of years, Ms. Brodsky has been appearing in Times Square, clad in a cowboy hat and boots and underpants and, mercifully, a bra, playing a guitar and making a general nuisance of herself. As if the presence of an obnoxious semi-nude sexagenarian stripper were not bad enough, she has had the temerity to bill herself as The Naked Cowgirl.

This last proved too much for Mr. Burck. When Ms. Brodsky repeatedly refused to become a franchisee (read, “pay a franchise fee”), Mr. Burck, his sensibilities no doubt offended, sued her for trademark infringement, unfair competition, injury to business reputation, and deceptive acts and practices. He claims that her “activities are bringing ill repute, ill will, and disfavor upon the Naked Cowboy brand based upon her activities which are inconsistent and in direct contravention to what the Naked Cowboy stands for …”

Ms. Brodsky countered that she was not infringing. She was, in fact, a naked cowgirl and her use of the term was merely as a description, not as a trademark. She went on to claim that Mr. Burck’s trademark registration was invalid both because it had been obtained by fraud and because the mark, “The Naked Cowboy,” “is generic and/or descriptive without secondary meaning.”

Meanwhile, Mr. Burck, who had previously run – unsuccessfully – as a candidate for mayor of New York, made a nationally televised announcement of his campaign for president of the United States. Blessedly, he was fully clothed at the time. Actually, considering the other likely candidates, his candidacy may not be such a bad thing – Mr. Burck can, at least, sing.

The coming of winter will likely chill the performances of both Mr. Burck and Ms. Brodsky. Indeed, Mr. Burck may find his otherwise prominent asset sadly diminished. Nevertheless, his political career should provide some entertainment.