## Facts

- Victor DeCosta, a Rhode Island mechanic and live entertainer, created and publicly performed a Western persona named “Paladin” beginning in the late 1940s.
- DeCosta used a consistent “Paladin” get-up, including black clothing, a flat-crowned black hat, and other distinctive accessories.
- DeCosta adopted the phrase “Have Gun Will Travel” and used it publicly, including on homemade business cards bearing the phrase and a chess-knight symbol, along with contact information to “Wire Paladin” in Cranston, Rhode Island.
- DeCosta disseminated photographs and business cards and appeared at local events in character, becoming known locally as “Paladin.”
- About a decade later, CBS launched a nationally broadcast television series titled “Have Gun – Will Travel,” featuring a main character named “Paladin” with similar clothing, a flat-crowned hat, and a business card featuring a chess knight and the phrase “Have Gun – Will Travel.”
- DeCosta claimed the defendants copied and misappropriated his persona, slogan, and associated symbols; the writers and producers denied access and asserted independent creation.

## Issues

1. Whether a live performer could recover for unfair competition or misappropriation based on alleged copying of a character persona (name, costume, and presentation) absent statutory intellectual-property protection.
2. Whether alleged copying of a phrase and symbol used in promotional materials (“Have Gun Will Travel” and a chess-knight device) could support liability under unfair competition on this record.
3. Whether the evidence of access, copying, and likely confusion as to source or sponsorship was sufficient to sustain the jury’s verdict and damages award.

## Decision

- The First Circuit reversed the judgments for DeCosta and set aside the damages award.
- The court held that DeCosta failed to establish a legally cognizable unfair-competition/misappropriation claim under the evidence and applicable doctrine.
- The court concluded that similarities between the two “Paladin” presentations, without adequate proof of protectable rights and wrongful appropriation recognized by unfair-competition law, were insufficient to impose liability.

## Legal Principles

- Unfair competition generally targets conduct akin to passing off or other practices likely to cause confusion as to source, sponsorship, or affiliation; resemblance alone is not enough.
- Common-law protection for a persona, character presentation, slogan, or “get-up” is limited and does not create broad proprietary control over general character concepts or ideas.
- Without statutory protection (such as copyright or registered trademark), a plaintiff must show a protectable commercial identifier and wrongful appropriation consistent with unfair-competition doctrine.
- Proof of copying typically requires persuasive evidence of access and appropriation; weak, circumstantial access evidence may not sustain liability even where similarities appear striking.
- Courts are cautious about using unfair-competition principles to create quasi-copyright or quasi-trademark rights in characters and phrases beyond established limits of the doctrine.

## Conclusion

The First Circuit rejected a jury verdict finding that a television network misappropriated a performer’s “Paladin” persona and “Have Gun Will Travel” materials, ruling that the record did not support unfair-competition liability without stronger proof of protectable rights, access-based copying, and actionable confusion.


Columbia Broad. Sys., Inc. v. DeCosta, 377 F.2d 315 (1st Cir. 1967)