Law Humor

Man Still Cannot Use "Here's Johnny" for Portable Toilet Business, Says Trademark Board

By Kevin Underhill

Some men's dreams do not die easily.  Earl J. Braxton is such a man.

In 1977, the U.S. District Court for the Eastern District of Michigan ruled that Braxton could not use the phrase "Here's Johnny" for a business that sold portable toilets.  Johnny Carson, of course, had sued to stop the practice, saying he had a right of publicity in that phrase, and the courts agreed after a legal fight that spanned a decade and two appeals.  See Carson v. Here's Johnny Portable Toilets, Inc., 810 F.2d 104 (6th Cir. 1987) (affirming lower court's ruling and permanent injunction).  

Years passed.

Johnny Carson retired from The Tonight Show in 1992, and died in 2005.  In 2006, apparently still cherishing his vision of a portable-toilet business called"Here's Johnny" almost thirty years after he first thought of it, Braxton tried to register the phrase again.

Braxton argued, among other things, that "the plaintiff in the previous actions has died" and that the relevant jurisdictions do not recognize "post-mortem rights of publicity."  As far as Carson being dead, Braxton was on pretty solid ground.  But as the Trademark Trial and Appeal Board held on March 25, both Michigan and California do in fact recognize post-mortem rights of publicity, and those rights had passed to Carson's estate.  Therefore, all the elements of res judicata (i.e. all the same parties) were satisfied, and Braxton was still bound by the original injunction.

It appears, therefore, that Mr. Braxton will never realize his life's dream.  And that would be sad, if that dream were not so ridiculous.  But according to Braxton's website (at toilets.com), he does own the trademarks "Porta-John," "Green John," "Sani-Jon," "Portaloo," and "Out-Standing in the Field," so that should be some consolation.

Link: Courthouse News Service

Full post as published by Lowering the Bar on April 06, 2010 (boomark / email).