The Naked Cowboy claims a bawdy, bikini-clad female busker who calls herself "The Naked Cowgirl" is ripping off his shtick, and he's threatening to lasso her into court for as much as $150,000.This is an absurd use of trademark law, something I think Jeff Tucker, Stephan Kinsella and I would agree on.
The cowboy, whose real name is Robert Burck, sent a cease-and-desist letter to his foil, Sandy Kane, a fixture of the city comedy scene and former stripper famous for closing her act by lighting her breasts on fire.
"Your use of Naked Cowgirl is essentially identical to the Naked Cowboy and is clearly in violation" of Burck's trademark...
The difference from my view and that of Tucker and Kinsella is that Tucker and Kinsella see a fundamental problem with trademarks ( I am assuming a private property society here--no government) whereas I would hold that an entirely unique creation, say the dollar sign painted by Andy Warhol, should be a recognized trademark in a private property society.
The basis for my distinction is the "independence" of discovery. Clearly, it is very possible that Naked Cowgirl could have thought of the words "Naked Cowgirl"on her own, so there is no way "Naked Cowboy" can prove that "Naked Cowgirl" stole his concept. These are common words.
On the other hand, the uniqueness of the work of Warhol would make it a very steep hill to climb for someone else to claim that they independently created the exact dollar sign that Warhol did.