Can the family/estate prevent a company from using a dead person's name in a brand?

Factual Questions
1

Or, Fannie Farmer Will Have Her Revenge on 1-800-Flowers

(I promise I didn’t create this thread solely for that obscure reference.)

Eh. I don’t really feel up to making an insane hypothetical, so let’s just go with what happened. Fannie Farmer wrote cookbooks. She was quite good at it, and people associated her name with good food. A company came along after she died and branded its candies as Fanny Farmer (note spelling) even though she had precisely jack to do with them. That company eventually morphed into 1-800-Flowers and probably sells candies in heart-shaped boxes. Depressing, I know.

In theory, could the estate of Fannie Farmer have stopped the candy company from hijacking the name and associated goodwill? Does the answer change if they did it while she was still alive?

2

I think this would be handled under trademark law - whoever got the rights to her name on cookbooks would have to sue 1-800 flowers. Whether the slight spelling change and fact that they are selling candy instead of cookbooks would tend to confuse consumers and make them think it’s her brand would be the focus of debate - if they were selling cookbooks it would be easy to show confusion, but candy and cookbooks might be distinct enough markets that the judge could decide there was no confusion.

3

Also, I just looked the company up now, and saw that the company started in 1919, 4 years after Fannie Farmer’s death. So trademark law was probably different back then for anyone who wants to tackle specifics, and the family definitely would not be able to do anything about use of the name today, as you have to vigorously defend trademarks and close to a century is a bit long on that.

I don’t think the fact that she was dead makes much difference in the eyes of the law, I’m pretty confident that trademark law depends on using the name in commerce, not whether it refers to a real person or whether the person is actually alive or not.

4

Cecil has the answer.

To be precise, he had the answer in 1978, but the law may have changed since then.

5

California has the Astaire Celebrity Image Protection Act passed in 1985, which says, in part:

So, if whatever product or service you intend to name after the deceased or advertising for such product or service appears in California, you’ve got a problem.