Lawyers Debate Whether Term is Generic : Shirley Temple Soft Drink Distasteful to Ex-Child Star

In the 1936 film “Poor Little Rich Girl,” child star Shirley Temple plays Barbara Barry, a wide-eyed, curly haired pixie who becomes an overnight star singing radio jingles for a soap company.

In real life, as in her movies, Shirley Temple could work magic when it came to selling products. So valuable is her name that in the past 50 years, she estimates, she licensed it for use in selling 140 products from dolls to music boxes. One potato chip maker even wanted to license it, but she turned him down.

Now Bradley Weidman and his fledging Soda Pop Kids company in Encino are selling a “Shirley T” soda without her permission and promoting it as “The Shirley Temple SoftDrink.” It’s a sparkling, cherry-flavored soda that is similar to the non-alcoholic Shirley Temple cocktail for kids served in bars and restaurants.

The real Shirley T. is miffed. Last Tuesday, Shirley Temple Black sued to stop Soda Pop Kids, accusing the company in a lawsuit filed in San Mateo, Calif., Superior Court of exploiting her name, diluting its commercial value and invading her privacy.

“I have always been very cautious all of my life to make sure any items are licensed. My lawyers will go after anyone who is using my name on a product without my permission,” said Black, 60, who lives in the Northern California town of Woodside, south of San Francisco.

The lawsuit comes just as Soda Pop Kids, a small private company that Weidman owns and runs, is about to embark on an ad campaign using a $100,000, 30-second television commercial that it produced featuring a dancing cherry. A judge in San Mateo County temporarily blocked the start of an ad campaign pending another hearing, but said Soda Pop Kids could continue selling the drink.

The origins of the Shirley Temple drink date to the 1930s, when the child actress was the nation’s top box-office star and earned more money than President Franklin D. Roosevelt. She recalls that the Brown Derby restaurant in Hollywood named the drink after her. Today, it’s served regularly in restaurants and bars, usually made from ginger ale or 7-Up combined with either cherry flavoring or grenadine.

Black said she has repeatedly turned down past offers to license her name for Shirley Temple drinks, including an offer from the husband of one of her best friends. She said she’s never liked the idea of any kind of cocktail for kids. What’s more, she says she “can’t stand” the taste of most Shirley Temple drinks because they are too sweet for her.

Weidman and his lawyers argue that because the drink has been sold so long in restaurants and bars, Soda Pop Kids should have the right to use it.

“The name Shirley Temple is generic for a soft drink, or kiddie cocktail, that has been sold for more than 50 years,” said lawyer David Garfinkle, a Chicago attorney specializing in trademark law who represents Weidman.

But Joseph M. Malkin, a San Francisco lawyer who represents Black, argues that Soda Pop Kids is violating a 1971 California law that prohibits people from using someone else’s name or likeness commercially without the person’s consent. He acknowledges that many restaurants, especially in Hollywood, name dishes after celebrities, but said Soda Pop Kids went too far.

“It’s one thing to go into a bar and order a Shirley Temple drink or go into a restaurant and get a Clint Eastwood pastrami sandwich. It’s another thing to sell a soft drink as ‘The Shirley Temple Soft Drink’ or a sandwich as ‘The Clint Eastwood Pastrami Sandwich,’ ” Malkin said.

Black’s lawsuit is one of the more unusual in a growing number of “right to publicity” lawsuits in which celebrities are seeking to exert more control over the use of their names, likenesses and voices in selling products. One of the most highly publicized cases recently involves singer and actress Bette Midler, who sued Ford Motor Co. over a commercial in which a singer imitated Midler singing one of her hits.

‘Interesting Case’

Stephen R. Barnett, a professor who teaches copyright law at UC Berkeley, said he believes that Black’s chances of winning are good because she can argue that the generic standard applies only to Shirley Temple drinks sold in bars and restaurants. Still, he said, the case is a tough call.

“It’s an interesting case. On the one hand, she has the right to use her name for commercial purposes. On the other hand, the name in relation to the drink has become part of the language,” Barnett said.

Weidman’s version of the Shirley Temple drink is a mixture of lemon-lime, cherry and pomegranate flavors that bears a slight resemblance in taste to a carbonated Hawaiian Punch.

Weidman, 26, said he came up with the idea for the soft drink two years ago. “When I was growing up, my favorite soft drink was a Shirley Temple. When I went out with my parents, that’s all I would ever order.”

He said he started his soft drink company two years ago with about $30,000, much of it raised from the sale of his sports car. He began selling sodas to such customers as delis and yogurt shops in Encino. Today, his sodas, which also include a berry-flavored drink called Berryblue and the peach-flavored Peachykean, are sold west of the Mississippi River through distributors, with plans to sell them nationally later this year.

Weidman won’t discuss his annual sales. But the company is clearly in the fledging stage, as evidenced by Weidman’s makeshift office inside an Encino apartment complex. Weidman says he once had an office with a more prestigious Ventura Boulevard address, but gave it up after getting $500 in parking tickets.

Black, who as a child starred in such classics as “Little Miss Marker” and “The Little Colonel,” made her last film, “A Kiss For Corliss,” in 1949. In recent decades she has been active in politics. In 1967, she ran unsuccessfully for Congress and served in the mid-1970s as the U.S. ambassador to Ghana.

Black’s Second Suit

Black said she first learned of the Shirley T soda last year and asked her lawyers to write a letter to the company asking that it stop selling the drink. She said she did not sue earlier because she hoped the company would stop selling the soda voluntarily and because she was busy doing four rewrites of “Child Star,” her 500-plus-page autobiography due out in bookstores next month.

She said it is only the second time she has sued to stop sale of a product with her name on it. The other time involved a carnival with a bull elephant named Shirley Temple that was promoted with signs leading people to believe that she would be appearing herself.

Black said she is further upset at Soda Pop Kids because she has not approved the drink for sale. She said she insists on personally inspecting and approving anything sold with her name on it because a defective or harmful product could hurt her image.

“I really am a tigress,” she said, “when it comes to making sure that there is quality control with products that have my name on them.”

THE PERFECT SHIRLEY TEMPLEThis cocktail, popular with generations of children over the past 50 years, was created at the Brown Derby, according to its namesake. The recipe for the pink drink is simple:

- 7 Up *

- Grenadine

- Maraschino cherry

* For boys, cola may be substituted, a variation known as the Roy Rogers.

Source: Brown Derby