The men from Mars have fired off a round at the Naked Cowboy.
The company that makes M&M’s claims Times Square’s scantily clad guitarist doesn’t own the rights to strolling around topless in tightie whities, according to papers filed yesterday in Manhattan federal court.
Lawyers for Mars Inc. acknowledged that the tourist favorite, whose real name is Robert Burck, has indeed trademarked the phrase “Naked Cowboy.”
But they are arguing that Burck doesn’t have the rights to trademark his signature “get-up” consisting of only a “white cowboy hat, white boots, white underpants and an acoustic guitar,” according to the filing.
The legal shootout began after an electronic billboard outside the M&M’s store in Times Square began displaying promotional videos featuring a blue cartoon M&M dressed in similar fashion to the Cowboy.
There was also a mural inside the store of a yellow M&M in a like get-up.
In February, Burck slapped Mars with a lawsuit, claiming it ripped off his trademark.
“It looks as though I’m endorsing that product,” he said.
Chute Gerdeman, the retail design and branding firm named in the lawsuit along with Mars, acknowledges it created the cowboy M&M.
But that image wasn’t meant to step on Burck’s boots, the firm said, pointing out that trying to trademark a person’s signature attire would be like the Yankees trying to trademark the wearing of pinstripes.
Mars “denies that Burck owns trademarks for his ‘persona,’ ” according to the court papers.
But don’t tell that Burck, who has parlayed his penchant for panty living into a global brand.
“It’s not that someone is wearing underwear,” he said, “it’s that someone is marketing it and selling millions of dollars of candy and influencing people to buy it.”
The two sides are facing off today in court.
“We need to make a lot of inquiries regarding trademarks and the origin of their idea. It’s pretty obvious it was copied from the Naked Cowboy’s trademark and persona,” said Burck’s lawyer, Kevin Mulhearn.
Lawyers for Mars declined comment.