## Facts

- Elroy “Crazylegs” Hirsch was a prominent football figure and University of Wisconsin athletic director widely identified by the nickname “Crazylegs.”
- S.C. Johnson & Son, Inc. marketed a women’s moisturizing shaving gel named “Crazylegs.”
- Johnson knew Hirsch was nicknamed “Crazylegs” and used the term on its product without Hirsch’s consent.
- Johnson’s campaign included promotions and a television advertisement that used a cheer similar to one associated with Hirsch at the University of Wisconsin.
- Members of the public contacted Hirsch believing he sponsored or was associated with the shaving gel; some attempted to buy the product from him.
- Hirsch sued on two theories: (1) common-law appropriation of his name/nickname for trade purposes, and (2) common-law trademark/trade-name infringement based on likely confusion as to sponsorship or endorsement.
- After Hirsch presented his case at a jury trial, the trial court dismissed, reasoning Wisconsin did not recognize appropriation as a privacy-based tort and Hirsch lacked a trade-name claim because he had not used “Crazylegs” to identify goods or services.

## Issues

1. Whether Wisconsin common law recognizes a cause of action for unauthorized commercial appropriation of a person’s name or nickname for trade or advertising purposes.
2. Whether a plaintiff can state a prima facie common-law trade-name/trademark infringement claim based on a personal nickname identifying the plaintiff in his vocation, without showing prior use on goods or services, if defendant’s use is likely to cause confusion as to sponsorship or endorsement.
3. Whether dismissal at the close of the plaintiff’s evidence was improper where the plaintiff presented evidence supporting each claim.

## Decision

- The Wisconsin Supreme Court reversed the dismissal and remanded for a new trial.
- The court held Wisconsin common law recognizes a claim for appropriation of a person’s name or likeness for trade purposes, distinct from previously rejected privacy torts.
- The court held Hirsch presented sufficient evidence to reach the jury on appropriation because the nickname was used commercially, without consent, with evidence of association and confusion.
- The court held Hirsch also presented a prima facie common-law trade-name/trademark infringement claim because the nickname identified him in his vocation and Johnson’s use could cause confusion regarding endorsement or sponsorship.

## Legal Principles

- Wisconsin common law provides a cause of action for appropriation of a person’s name or likeness for commercial purposes, protecting a proprietary interest in the publicity value of identity rather than a purely privacy-based interest.
- Appropriation liability generally requires: use of the plaintiff’s name/likeness, for trade or advertising purposes, without consent, causing injury to the protected commercial interest.
- A personal nickname may function as a protectable common-law trade name when it identifies the person in his or her occupation; protection can extend to preventing likely confusion about sponsorship or endorsement even absent prior use on goods or services.
- When evidence would permit a jury to find the elements of the asserted common-law claims, the case should not be removed from the jury by dismissal at the close of the plaintiff’s evidence.

## Conclusion

The court recognized a Wisconsin common-law claim for commercial appropriation of a person’s name or nickname and allowed a common-law trade-name infringement theory based on likely confusion over endorsement, reversing the trial court’s dismissal and ordering a new trial.


Hirsch v. S.C. Johnson & Son, Inc., 280 N.W.2d 129 (Wis. 1979)