## Facts

- Franklin Mint produced and sold collectibles bearing Princess Diana’s name and likeness beginning in 1981 and continued after her death in 1997.
- During Diana’s lifetime, multiple companies marketed similar memorabilia, and she neither authorized nor objected to such products.
- After Diana’s death, a charitable memorial fund was created; the Estate authorized the Fund to use Diana’s name and likeness for the Fund’s charitable purposes.
- The Fund licensed about twenty authorized users in the United States, excluding Franklin Mint.
- The Fund sued Franklin Mint in federal court alleging Lanham Act false endorsement and false advertising under 15 U.S.C. § 1125(a)(1), dilution under § 1125(c)(1), and state-law claims including a post-mortem right of publicity claim under California Civil Code § 3344.1.
- The district court dismissed the post-mortem right of publicity claim for failure to satisfy the statute’s California domicile requirement, granted summary judgment to Franklin Mint on the Lanham Act false endorsement claim, and awarded attorneys’ fees to Franklin Mint.

## Issues

1. Whether the Fund could reinstate a California post-mortem right of publicity claim when Princess Diana was not domiciled in California at death and choice-of-law principles pointed to English law.
2. Whether Franklin Mint’s use of Diana’s name and likeness created a likelihood of consumer confusion as to sponsorship or endorsement under 15 U.S.C. § 1125(a)(1).
3. Whether the district court abused its discretion by awarding attorneys’ fees to Franklin Mint as the prevailing party in an “exceptional case” under the Lanham Act.

## Decision

- The Ninth Circuit affirmed the denial of the motion to reinstate the post-mortem right of publicity claim.
- The Ninth Circuit affirmed summary judgment for Franklin Mint on the Lanham Act false endorsement claim.
- The Ninth Circuit affirmed the attorneys’ fee award to Franklin Mint as the prevailing party.

## Legal Principles

- California Civil Code § 3344.1 provides a post-mortem right of publicity only for a “deceased personality” domiciled in California at death.
- Under California choice-of-law rules, the existence and descendibility of publicity rights in a deceased person’s identity are determined by the law of the decedent’s domicile at death.
- Where the governing domicile law does not recognize a post-mortem right of publicity, an estate or related entity cannot assert such a right in California based solely on in-state exploitation.
- Lanham Act false endorsement under 15 U.S.C. § 1125(a)(1) requires evidence supporting a likelihood of consumer confusion as to affiliation, connection, or endorsement.
- Generalized claims of unauthorized commercial use, without adequate proof of likely confusion (including reliable consumer evidence where appropriate), are insufficient to defeat summary judgment.
- Lanham Act attorneys’ fees may be awarded to the prevailing party in “exceptional cases,” and appellate review of such awards is for abuse of discretion.

## Conclusion

The Ninth Circuit held that English law governed and did not provide a post-mortem right of publicity for Princess Diana, rejected the Fund’s Lanham Act false endorsement claim for lack of sufficient evidence of likely consumer confusion, and upheld the attorneys’ fee award because the case was properly treated as exceptional.


Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002)