UPDATE 1-Judge strips Naked Cowboy of claims vs CBS

Thu Feb 23, 2012 6:19pm EST

By Jonathan Stempel

Feb 23 (Reuters) - A federal judge has reviewed the Naked Cowboy's briefs and concluded his legal arguments just didn't fit.

The guitarist known for parading in New York's Times Square while clad in his underwear, boots and a cowboy hat has lost his $1.5 million lawsuit accusing the CBS Corp. soap opera "The Bold and the Beautiful" of ripping off his act.

The Naked Cowboy, whose real name is Robert John Burck, said the soap opera violated his trademark rights by depicting a similarly-clad, guitar-strumming, "drunk and sexually charged" character named Oliver.

While Oliver was not identified on the Nov. 1, 2010, episode as the Naked Cowboy, CBS later posted the clip on Google Inc.'s YouTube with the tag "The Bold and the Beautiful -- Naked Cowboy," according to the complaint.

Burck said the Naked Cowboy has become "a part of the New York cultural dynamic" since he developed the concept in 1997, and that CBS harmed his reputation.

U.S. District Judge Barbara Jones in Manhattan, however, threw out the case, finding that "even an unsophisticated viewer" would not have confused the soap opera character with the Naked Cowboy.

Burck's costume "contains several distinctive characteristics, namely the presence of 'Naked Cowboy' on the hats, briefs and guitar, as well as the 'Tips' or '$' on the boots," she wrote in a decision made public on Thursday.

"Simply put, Oliver did not wear the Naked Cowboy costume."

Jones also said the YouTube video title merely described the clip's contents, and thus constituted fair use.

Burck could not immediately be located in Times Square for comment.

His lawyer Joey Jackson through a spokesman said "all legal options," which could include an appeal, remain open.

"The Naked Cowboy will vigorously fight any attempt from any person or entity to profit from his brand and destroy its integrity," Jackson said.

Chris Ender, a CBS spokesman, said: "This dismissal confirms that the emperor, or in this case, the cowboy, has no clothes."

The case is Naked Cowboy v. CBS et al, U.S. District Court, Southern District of New York, No. 11-00942.

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