The family of an Ethiopian runner who famously won an Olympic marathon barefoot is suing Vibram, the maker of a popular line of minimalist running shoes, saying it used his name without permission.
The Bikila Family sued principally under the state of Washington’s “Personality Rights Act.” This law provides that “Every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness.” This law is one of the most liberal in the nation as it applies to deceased personalities and grants to the heirs of the deceased personality the right to sue for infringement of the property rights granted by the act.
Abebe Bikila, who died in 1973 from complications stemming from a car accident, was a last-minute entrant in the 1960 Olympics in Rome and didn’t like the fit of the shoes he’d been provided. Running barefoot over the cobbled streets, he shattered the existing Olympic record, finishing in just over two hours, 15 minutes. In 1964 Bikila became the first Olympian to win two consecutive gold medals in the marathon. Bikila won his second Olympic marathon by a margin of more than four minutes and set a world record. Mr. Bikila, however, is still remembered in the running world for his 1960 Olympics. He was a last-minute substitute for a member of the Ethiopian team who took sick. He arrived in Rome without adequate running shoes. Used to running barefoot in Ethiopia, Mr. Abebe decided a couple of hours before the race to run barefoot. His record time in finishing the marathon first while running barefoot caused a sensation in the running world. There are awards and events named after him to this day.
Vibram manufactures “minimalist” footwear intended to closely approximate barefoot running conditions. The company’s shoe products have thin, flexible soles that are contoured to the shape of the human foot, including visible individual sections for the toes. Vibram uses more than 35 different trade names for its running shoes including names such “Alitza,” “Classic,” “EL-X,” “Jaya,” “Lontra,” “Speed,” “Trek LS,” and ‘Vybrid Sneak’. Vibram trademarked the “Bikila” name in 2010, has several models using the name, including the Bikila EVO and the Bikila LS. Vibram touts its products as “barefoot shoes” that encourage a more natural forefoot strike while running. Because of the popularity of these specialized running shoes and Mr. Bikila’s unique association with barefoot running, Vibram’s parent company filed for a trademark of the name “Bikila” for footwear.
Based on these differing statutory rights, the court found that the ‘Right of Privacy’ and the ‘Right of Publicity’ are different legal rights and what each of these rights protects has been well defined in Massachusetts for several decades. On that basis, the court found that the Bikila Family’s suit did not involve a claim that Vibram’s actions invaded any right to privacy but instead involved a claim of Vibram infringing their right to publicity and, therefore no coverage applied.
Secondly, the use of “another’s advertising idea in the insured’s ‘advertisement’. In this instance the court analyzed the nature of an “advertising idea”, The Bikila Family has not used Abebe Bikila’s name to promote or commercialize any particular product or service. It is famous and commercially valuable because of Abebe Bikila’s personal accomplishments, not because the Bikila Family has used it as an advertising idea for a product or service.
The court acknowledged that Vibram might be using Bikila as a slogan to promote its minimalist line of running shoes and apparel, but noted the Bikila Family did not use it as a catch phrase to promote any product. The court further noted that the Bikila Family was not complaining that it suffered loss because Vibram used a slogan