Owning Lizzie Borden
by Mars Riley
In 1892, on a hot August morning, the town of Fall River, Massachusetts would change forever. Before that day it had been the leading manufacturer of textiles in the U.S., afterward it was known as the home of Lizzie “took an ax, gave her mother forty whacks, when she saw what she had done, she gave her father forty-one”Borden. The murder of her parents and her subsequent trial (where she was acquitted, by the way) completely altered the identity of Fall River. It is impossible to walk around the town and not be reminded of the 117-year-old tragedy: there are signs in windows, countless books, local community college classes, murder and trial reenactments, one woman shows, historical society exhibits, museums and even a Bed & Breakfast in the house where the Borden parents met their bloody demise. If Fall River ever had to change its name, it wouldn’t surprise anyone if they renamed it Lizzie Bordenville.
But that may be about to change.
Lizzie Borden’s name and face has now been trademarked by the Lizzie Borden Bed and Breakfast. It is still okay to write about her, publish her photo or do a one woman show, but if someone has plans to sell t-shirts, hats, keychains, mugs, wineglasses, air fresheners, axes or open a restaurant with “Lizzie Borden” on it, they will now have to get permission from the Lizzie Borden B&B.
You might wonder how a Bed & Breakfast can own the name and face of a person who had no relation to that business except that the homicide they were accused of occurred there.
The answer is ANYONE can trademark the name of a dead person, regardless of whether they are related. The criterion is that you need to have been using the name already for commercial purposes. What you can’t trademark is “the name, portrait, or signature of a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.” You also can’t do it if the goal is to “disparage or falsely suggest a connection with persons, living or dead.” You can also be denied if there is an heir to the dead person who can benefit from the rights of the deceased’s publicity.
In the case of Lizzie Borden B&B, they won the trademark simply because they were the first to apply for it. They are located in the actual house where the murders occurred in 1892 and since Lizzie had no children they might be the closest thing to a descendant she has. By gaining rights to the name, they now have the legal right to protect the brand and merchandise. They can dictate what Lizzie Borden products the other businesses in Fall River (and elsewhere) can sell. Considering how much Fall River relies on Lizzie Borden tourism dollars, Lizzie Borden B&B will probably get the best seats at all future city council meetings.
For the Lizzie Borden B&B it is also a preemptive way of keeping someone else from owning the name and effectively putting them out of business. One competitor, Lizzie Borden Museum in nearby Salem, has since been forced to change its name to 40 Whacks Museum and has been given a date by which it must stop selling pre-existing Lizzie Borden souvenirs. Even though they can legally do so, the Lizzie Borden B&B says they have no plans to immediately pursue other companies using the name. Even so, competitors should be on alert. Whether it is a lawsuit or an axe, in Fall River, it’s best to keep at least one eye open at all times.
