The New York Post's Page Six reported that Katie Holmes may take legal action against the new adult star for using her name. Adult industry attorney Lawrence Walters told XBIZ that such a lawsuit would hinge on whether or not the Hollywood star had trademarked her name.
"If she has it trademarked, then there's going to be a problem there, especially with the adult industry involved," he said. "Whenever an adult performer uses the name of a mainstream star, you can make the argument that the adult star is disparaging the name of the trademark holder."
Walters added that the strength of U.S. trademark laws would make such a case difficult for an adult performer to defend against if the plaintiff has a trademark. Possible defenses include fair use – arguing that the adult star was using the name in a reasonable way – or satire – arguing that the adult star was using the name to make fun of or otherwise spoof the mainstream figure.
But such worry may be moot for the new adult star. A search for Katie Holmes' name on the U.S. Patent and Trademark Office's website turned up no registered trademark for her name. Calls and emails to Katie Holmes' publicist were not returned.
Walters said if the Hollywood star hasn't trademarked her name, she'll have a much harder time mounting a case, although she could argue her name is protected by a common law trademark, meaning that the very phrase "Katie Holmes" has become a marketable product through use and marketing.
"These kinds of cases usually end with a letter demanding that someone stop doing something," he said. "But there could be big consequences and huge fees if the person in question, the adult industry figure, wanted to go to the mat for their name."