If you have ever been to New York City around Times Square you may remember spotting Robert Burck, 37, walking around with his guitar and dressed only in his white cowboy boots, his Stetson hat and skimpy white underwear. He has been doing this for about 10 years now so he is pretty well known around there.

Burck filed a lawsuit against M&M’s candy maker Mars Inc. on grounds of trademark infringement. The suit was filed in February over video billboards showing a blue M&M character dressed in Burck’s signature outfit.

A motion had been filed to dismiss the lawsuit but U.S. District Court Judge Denny Chin denied it ruling that Burck may go on with his false endorsement claim. The lawsuit claims that Burck plausibly alleges that consumers seeing defendant’s advertisements could conclude incorrectly that he was endorsing M&M Candy.

If you see Burck on the streets of New York you will find that he poses for photos with the tourists and they slip dollars into his boots for them. . He has trademarked his look and licensed his name and likeness to companies for endorsements and advertisements such as in a Chevrolet commercial that was featured during one of the Super Bowl games.

Msnbc.com reports Burck telling TODAY’S Natalie Morales Wednesday morning live from Times Square, “I came to New York City to be the most celebrated entertainer of all time. There are certain values that are representative of that effort. Eating candy is not one of them. When they dressed up the M&M to personify the Naked Cowboy they implied that I was endorsing their product.”

Also named in the suit is Chute Gerdeman Inc., the agency that created the ads with the Naked Cowboy M&M who also has created ads for other M&M characters dressed like The Statue of Liberty and King Kong.

Jan Barrett

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