r participation in Cheers, an actor or actress doesnot lose the right to control the commercial exploitation of hisor her likeness by portraying a fictional character. Lugosi, 603P.2d at 431.[7] Appellants have raised genuine issues of material factconcerning the degree to which the figures look like them. 12360Because they have done so, appellants have also raised triableissues of fact as to whether or not appellees sought to appro-priate their likenesses for their own advantage and whetherthey succeeded in doing so. See Midler, 849 F.2d at 463. Theultimate issue for the jury to decide is whether the defendantsare commercially exploiting the likeness of the figures toWendt and Ratzenberger intending to engender profits to theirenterprises. See Eastwood, 198 Cal. Rptr. at 349 ("The firststep toward selling a product or service is to attract the con-sumer's attention.") We therefore reverse the grant of sum-mary judgment on the common law right of publicity claim.C. Unfair Competition[8] Section 43(a) of the Lanham Act (15 U.S.C. S 1125(a))prohibits, inter alia, the use of any symbol or device whichis likely to deceive consumers as to the association, sponsor-ship, or approval of goods or services by another person. Theappellants' claim is for false endorsement--that by using animitation of their unique physical characteristics, Host misrep-resented their association with and endorsement of the Cheersbars concept.In Waits, 978 F.2d at 1110, we held such a claim actionableunder S 43(a): [a] false endorsement claim based on the unautho- rized use of a celebrity's identity . . . alleges the mis- use of a trademark, i.e., a symbol or device such as a visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to con- fuse consumers as to the plaintiff's sponsorship or approval of the product.[9] In Wendt I we held that appellants would hav...
