A Somewhat-Altered Journey Continues:
Court Rules on the Use of Cousteau Trademarks

Jacques Cousteau, wearing his signature red cap, achieved worldwide fame as an oceanic explorer, filmmaker, and marine conservationist. Prior to his death in 1997 at the age of 87, Cousteau established The Cousteau Society (TCS) and granted the nonprofit exclusive rights to his intellectual property portfolio. Recently, the U.S. District Court for the District of Connecticut ruled on a lawsuit related to use of trademarks and images by Jacques Cousteau’s granddaughter Celine Cousteau and her affiliated enterprises (defendants), which produce films related to environmental and sociocultural issues.

After the defendants produced two short films and accompanying promotional materials, TCS brought suit alleging that the use of certain phrases and images resulted in trademark infringement, false association, and violation of the right of publicity. TCS claimed that the title of one film, Celine Cousteau, The Adventure Continues, was too close to the TCS-owned trademark “The Adventure Continues.” TCS objected to the use of trademarks and images in another film, Tribes on the Edge, and its promotional materials. The nonprofit also alleged that the defendants improperly used Jacques Cousteau’s name and image, including a photo of Celine as a child with her grandfather, to attract donors and funding. The defendants filed a motion to dismiss the claims. The court granted the motion in part and denied it in part. The Cousteau Society, Inc. v. Celine Cousteau, No. 3:19-CV-1106 (AWT), 2020 WL 5983647 (D. Conn. Oct. 8, 2020).

The federal district court first rejected the defendants’ claim that the First Amendment protected the use of the images and phrases in the films. The court applied a two-prong test that looks at whether the allegedly infringing work has artistic relevance to the trademark and might “explicitly mislead as to the source or content of the work.” Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). The court found that there was artistic relevance to use the trademark; however, the use of the trademarks had the potential to mislead consumers about endorsement of the works.

The court also granted the defendants’ motion to dismiss two of TCS’s federal trademark claims. The court rejected the federal trademark claim related to Celine Cousteau, The Adventure Continues, as that film was never released in the U.S. The court also found that the plaintiffs failed to show that Tribes on the Edge used any of the registered trademarks.

However, the court allowed TCS’s false association claim to proceed. Federal law prohibits false or misleading statements that might deceive consumers. The court found that the false association claim was plausible, as consumer recognition of Cousteau’s image could lead to a false belief that he endorsed the film.

Separately, the defendants argued that the state trademark claims should be dismissed due to the lack of connection to the state of Connecticut. The court disagreed, noting that some of the acts mentioned by the claims occurred in the state. Specifically, Tribes on the Edge was screened in Connecticut and the company solicited donations through a website targeting Connecticut residents.

Finally, the court ruled that the right-of-publicity could proceed. The court applied “choice of law” rules to determine whether French or Connecticut law would apply to this claim since the jurisdictions have conflicting laws. The parties agreed that French law would apply, given that France had a “significant relationship” to the occurrence and the parties for this particular issue. The defendants argued that under French law, the right did not continue after death. The court found that French law supported the contention that the right remained enforceable.

The trial will now proceed to its next phase, where the claims that were allowed to proceed will be judged on their merits if the parties do not settle out of court.