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Waits v. Frito-Lay: A Distinctive Voice and the Birth of False Endorsement

The Ninth Circuit recognized that imitating a celebrity's distinctive voice to imply sponsorship can be a false-endorsement violation of Section 43(a) of the Lanham Act.

September 22, 2025
Vintage microphone in a recording studio under warm light
A gravel-voiced singer's refusal to do commercials set up a landmark false-endorsement ruling. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), No. 90-55981, decided August 5, 1992, is one of the foundational decisions recognizing false endorsement as a distinct theory under Section 43(a) of the Lanham Act. In an opinion by Circuit Judge Boochever, the United States Court of Appeals for the Ninth Circuit affirmed a jury verdict for the musician Tom Waits, holding that a deliberate imitation of a celebrity’s distinctive voice in a commercial — designed to make consumers think the celebrity had lent his endorsement — is actionable under federal unfair-competition law, even though the celebrity is not a “competitor” of the advertiser in any conventional sense.

At a glance

  • Case: Waits v. Frito-Lay, Inc. (and Tracy-Locke, Inc.), 978 F.2d 1093 (9th Cir. 1992)
  • Docket / decided: No. 90-55981; decided August 5, 1992
  • Court: U.S. Court of Appeals for the Ninth Circuit, on appeal from the Central District of California
  • Author: Circuit Judge Boochever
  • Holding: A false-endorsement claim under § 43(a) lies where a defendant imitates a celebrity’s distinctive voice in a way likely to confuse consumers about the celebrity’s sponsorship or approval; the celebrity has standing as the holder of an economic interest akin to a trademark in his identity
  • Why it matters: It established the celebrity-identity branch of § 43(a) false endorsement and confirmed that non-competitors can sue

How the dispute arose

Tom Waits is a singer-songwriter with a famously gravelly, distinctive voice and a well-known, publicly stated policy against doing commercial endorsements. To market a new product, SalsaRio Doritos, Frito-Lay hired the advertising agency Tracy-Locke. The agency built a radio jingle modeled on Waits’s song “Step Right Up,” echoing its rhythm, rhyme, and wordplay. To perform it, Tracy-Locke hired a singer who had spent years covering Waits songs and could mimic his voice closely. The finished spot sounded enough like Waits that people who knew his work believed it was him.

Waits sued for two distinct wrongs: (1) voice misappropriation under California common-law right of publicity, and (2) false endorsement under § 43(a) of the Lanham Act. A jury found for Waits on both, awarding substantial compensatory and punitive damages on the state-law claim and a separate sum on the Lanham Act claim. Frito-Lay and Tracy-Locke appealed.

Two theories, two bodies of law

The case is a clean illustration of how a single advertising stunt can trigger parallel — but legally separate — claims.

The right-of-publicity claim is a creature of state law (here, California common law as developed in Midler v. Ford Motor Co.). It protects a person’s economic interest in the commercial use of his identity, including a distinctive voice, and is vindicated as a personal property right. The court affirmed the jury’s voice-misappropriation verdict, including punitive damages, holding that deliberately imitating a widely known professional singer’s distinctive voice to sell a product is a tort under California law.

The false-endorsement claim is federal and sounds in trademark/unfair-competition policy. Section 43(a) forbids the use in commerce of any word, symbol, or device, or any false designation, that is likely to cause confusion as to the “sponsorship, or approval” of goods. The theory is not that the defendant stole the plaintiff’s property, but that consumers were misled into believing a celebrity endorsed a product he never approved. The harm is consumer confusion plus injury to the celebrity’s control over the commercial use of his persona.

The holding: voice as a source identifier of endorsement

The Ninth Circuit confirmed that false-endorsement claims are cognizable under § 43(a) and that a celebrity’s distinctive voice can function like a trademark — a recognizable signal that consumers associate with a particular person. When that signal is imitated to imply approval, the resulting consumer confusion is exactly what § 43(a) addresses.

To evaluate likelihood of confusion in the celebrity-endorsement setting, the court adapted the familiar multifactor confusion analysis to the facts: the level of recognition the plaintiff enjoys among the audience; the relatedness of the plaintiff’s fame to the advertised product; the similarity between the imitation and the genuine voice; evidence of actual confusion; the overlap and sophistication of the audiences; the defendant’s intent in selecting the imitation; and the likelihood of expansion of product lines. Here, the deliberate decision to mimic a distinctive, instantly recognizable voice — coupled with evidence that listeners actually believed it was Waits — supported the jury’s confusion finding.

Standing: why a non-competitor can sue

A recurring objection to celebrity false-endorsement claims is that the plaintiff does not “compete” with the advertiser and therefore should not have standing under a competition statute. The court rejected that framing. A celebrity, it reasoned, holds an “economic interest akin to that of a trademark holder in controlling the commercial exploitation of his or her identity.” Even a performer who refuses to do commercials competes with anyone who wrongfully appropriates his identity, because both are dealing in the same scarce asset — the right to use that persona to sell goods.

This standing analysis prefigured the Supreme Court’s later, more general framework in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), which abandoned the rigid direct-competitor rule in favor of a zone-of-interests and proximate-cause inquiry. A celebrity whose endorsement is faked suffers precisely the kind of commercial injury to reputation and control that the Lanham Act protects.

The damages wrinkle

There was a catch. Although the court affirmed liability on both claims, it vacated the separate Lanham Act damages award as duplicative of the voice-misappropriation damages — Waits could not recover twice for what was, economically, a single injury. The court nonetheless affirmed the award of attorneys’ fees associated with the Lanham Act claim. The lesson is procedural but important: parallel theories can establish liability on multiple grounds, yet a plaintiff is not entitled to stack overlapping compensatory recoveries for the same harm.

Open questions

  • How “distinctive” must a voice be? The doctrine protects widely recognized, distinctive voices, but the threshold for distinctiveness — and how courts measure audience recognition — remains fact-intensive.
  • Imitation versus inspiration. The line between an unlawful sound-alike designed to evoke a specific celebrity and a lawful song “in the style of” a genre is unsettled and recurs in music-advertising disputes.
  • First Amendment limits. Later cases probe how false-endorsement liability interacts with expressive and parodic uses; Waits involved straightforward commercial advertising, leaving the harder expressive cases for other courts.
  • Interaction with the right of publicity. Because the two theories overlap, courts continue to refine how damages, defenses, and preemption sort out between state publicity law and federal § 43(a).

Implications

  • Sound-alikes carry trademark risk. Hiring an imitator to evoke a specific, recognizable celebrity can trigger Lanham Act liability in addition to state right-of-publicity exposure.
  • Intent evidence is potent. Documentation showing an agency chose an imitation precisely because it sounded like the celebrity strongly supports both confusion and, on the state claim, punitive damages.
  • Non-competitors have standing. A celebrity need not sell anything to sue; control over the commercial use of identity is the protected interest.
  • No double recovery. Plaintiffs may win on multiple theories but cannot collect duplicative compensatory damages for one underlying injury — though fee awards may still attach to the Lanham Act claim.
  • Clearance practice. Advertisers should clear voice talent and creative concepts against the risk that a performance is engineered to impersonate a known figure.

Frequently asked questions

What is the difference between voice misappropriation and false endorsement? Voice misappropriation is a state right-of-publicity tort protecting a person’s property interest in his own identity. False endorsement is a federal § 43(a) claim premised on consumer confusion about whether the celebrity sponsored or approved the product. The same imitation can violate both.

Does the plaintiff have to compete with the advertiser to sue under § 43(a)? No. The court held that a celebrity holds an interest akin to a trademark holder’s in controlling commercial use of his identity, and so has standing even though he does not compete with the advertiser in any ordinary market sense.

Why was the Lanham Act damages award vacated if Waits won the claim? Because it duplicated the compensatory damages already awarded for the same injury under the voice-misappropriation claim. A plaintiff cannot recover twice for one economic harm, even when liability is established on more than one legal theory; the related attorneys’ fee award, however, was affirmed.

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