John W. CARSON, Johnny Carson, an individual, and
Johnny Carson Apparel, Inc., a corporation,
HERE'S JOHNNY PORTABLE TOILETS, INC., a corporation,
The Johnny Carson Toilet Case involved claims of unfair competition and invasion of the right of privacy and the right of publicity arising from appellee's adoption of a phrase generally associated with a popular entertainer. Appellant, John W. Carson was the host and star of "The Tonight Show," a well-known television program broadcast five nights a week by the National Broadcasting Company. Carson began hosting the show in 1962 and he had been introduced on the show each night with "Here's Johnny." This introduction was first used for Carson in 1957. Ten years later, Carson first authorized use of his phrase, letting it be used by a chain of restaurants called "Here's Johnny Restaurants." Appellant Johnny Carson Apparel, Inc., formed in 1970, with a line of men's clothing to retail stores. Carson was the president of Apparel and owned of 20% of its stock. He also had licensed Apparel to use his name and picture, which appeared on virtually all of the lines clothing. With Carson’s consent, the line was also able to use “Here’s Johnny” as its brand slogan. Seven years later, he authorized a line of men’s toiletries, also using the slogan “Here’s Johnny”. The phrase “Here’s Johnny” was never authorized or trademarked.
The appellee was “Here's Johnny” Portable Toilets, Inc. This was a Michigan based business that would rent and sell "Here's Johnny" portable toilets. The founder was aware at the time he formed his business that "Here's Johnny" was one of the slogans for Carson on "The Tonight Show." The owner indicated that he coupled the phrase with a second one, "The World's Foremost Commodian”.
Soon after the appellee went into business in 1976, appellants brought this action. The company alleged unfair competition,...