Jessica Alba Sues the Belly Bandit
By Maria Cheung
Reviewed by Jennifer Williams
Jessica Alba has sued Camden Companies, the maker of the popular Belly Bandits, a weight-loss garment that helps new mothers shed the post-baby weight. Alba is seeking more than one million dollars in damages from the company for using her name, image, likeness and photograph on its website to sell their products without her permission.
According to the lawsuit, Alba’s attorneys initially served Camden with a cease and desist letter in September, but the company did not comply with Alba’s request to take down the materials at issue. Alba’s attorneys claim the company has “prominently featured and posted a photograph of Alba and listed her name under the ‘Celebrity Testimonials’ section of their website.” The company “has knowingly and intentionally misappropriated and used” her to endorse their “post-pregnancy clothing and accessories,” Alba’s lawyers continued to state. The lawsuit filed on October 11, 2011, alleges that the company features a fictitious testimonial from her on their website and has a product that it claims is, “Jessica Alba’s #2 Secret for a Fast Post Pregnancy Slimdown!”
The actress, who just gave birth to a second daughter this past August, is also asking for a percentage of the profit the company has made so far and demanding that her name be removed from future advertisements. As of October 12, Alba’s image was no longer on the Belly Bandit website and the Celebrity Testimonials page appeared inaccessible, although Kourtney Kardashian was listed as a Belly Bandit endorser.
Alba probably has a legitimate misappropriation of image and likeness claim, a right of publicity claim and a trademark claim for her name. The misappropriation of a person’s image or likeness is the misuse of a person’s image or likeness by another entity. Here, there was misappropriation because the company misused Alba’s image and likeness by stating she endorsed its product when she did not. This type of misappropriation often ties into the right of publicity, which prohibits the unauthorized commercial use of a person’s name, likeness, or other recognizable features. It gives a person the exclusive right to license the use of their own identity for commercial reasons.
The area of right of publicity is still very new to the court system. As a result, there are not many bright line rules in this area of law. However, because the company actually used Alba’s name and picture on its website, Alba may have a very strong claim here. It is also worthy to note that the right of publicity varies from state to state. California has a very strict right of publicity statute. Its right of publicity statute, Civil Code Section 3344, was first enacted in 1971 and states: “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person’s prior consent…shall be liable for any damages sustained by the person or persons injured as a result thereof.”
Alba probably has a valid trademark claim here because she can use her name to sell products including her films and has endorsed other products in the past such as make-up and hair color for Revlon. Her viewers and fans, as consumers, may rely on her name when they buy products that appear to have her endorsement. Belly-bandit’s false endorsement may have led to consumer confusion and deception in some sense because Alba’s fans may have only bought the product due to the belief that it would help them slim down and obtain her post-baby body.
Only time will tell how a court will rule on Alba’s lawsuit or if it will be settled. Since the company already pulled Alba’s photo and endorsement off of the website, there is no need for an injunction except to prevent the company from further using Alba’s image and likeness in their advertisements. It will also be interesting to see if Alba receives all of the damages she is requesting.