The celebrity and heiress Paris Hilton may pursue her lawsuit against Hallmark Cards over its use of her picture and catchphrase "That's hot" on a greeting card, a federal appeals court ruled on Monday.
Hilton had contended that Hallmark violated her privacy and right of publicity by ripping off a scene from her reality TV show "The Simple Life" on a birthday card captioned "Paris's First Day as a Waitress."
U.S. socialite Paris Hilton poses at a party in downtown Beirut July 3, 2009.
A three-judge panel of the U.S. 9th Circuit Court of Appeals rejected Hallmark's argument that its depiction of the Hilton Hotels heiress was protected speech as a matter of law.
It sent the case back to a lower court, which had turned aside Hilton's claim of trademark infringement but rejected other Hallmark defenses.
Lincoln Bandlow, a lawyer at Lathrop & Gage LLP in Los Angeles representing Hallmark, said "the analysis of the First Amendment defense is incorrect. It will leave a lot of speakers subjected to meritless right of publicity claims."
He said Hallmark will evaluate options including a possible appeal to the full 9th Circuit or the U.S. Supreme Court.
Brent Blakely, a lawyer for Hilton, was not available for comment.
The card showed Hilton's face superimposed on a cartoon of a waitress serving a plate of food to a restaurant customer.
Hilton tells the customer, "Don't touch that, it's hot." The customer asks, "What's hot?" Hilton responds, "That's hot." The inside of the card reads "Have a smokin' hot birthday."