A Seattle businessman took a gamble in launching Hendrix Electric Vodka without the approval of the company that controls the Jimi Hendrix estate. He may now be about to pay the legal price.

The vodka, packaged in a distinctive “purple haze” bottle, is the only product of Electric Hendrix, a company co-owned by Craig Dieffenbach and Hendrix's brother Leon. Dieffenbach began selling it last year even though the estate has a policy against allowing alcohol promotions using the Hendrix name.

In a suit filed March 6, the family-run company Experience Hendrix alleges the vodka has infringed on its Hendrix-related trademarks and tarnished the brand. Jimi's death in 1970 has been attributed in part to alcohol consumption.

Electric Hendrix's use of Hendrix-related trademarks is “intended to deceive and defraud the public and to pass off and palm off their vodka and other merchandise as authorized by the Hendrix family companies and Jimi Hendrix's heirs,” the complaint, which seeks injunctive relief and unspecified damages, says.

Janie Hendrix, Jimi's adopted stepsister and CEO of Experience Hendrix, has battled Leon Hendrix for years over merchandising rights. “In view of the circumstances of my brother Jimi's death, this attempt to associate his name with the sale of alcohol beverages amounts to a sick joke,” she said in a statement.

Dieffenbach teamed up with a distiller to produce his vodka in May 2005 -– just one month after a judge in Seattle denied a publicity rights claim that the estate had brought against Leon Hendrix for promoting a “Jimi Awards” fundraising event.

Granting summary judgment to Leon, U.S. District Judge Thomas S. Zilly said that under New York law, Jimi's publicity rights did not survive his death and therefore could not have been assigned to Experience Hendrix by his father Al.

“[T]he Court finds that New York’s Civil Rights Law and its statutory right to privacy preempt any common law right of publicity action and concludes that no right of publicity descended to Al Hendrix in 1970,” Zilly concluded in his decision.

Dieffenbach has responded to the vodka suit by threatening to countersue Experience Hendrix. The publicity rights case, he claims, gave him "the right to market Hendrix Electric Vodka and other goods and services featuring the name and likeness of Jimi Hendrix."

But the vodka case -– which has also been assigned to Zilly – does not include a publicity rights claim. Trademark rights are descendible in New York and there is nothing in the decision cited by Dieffenbach to indicate that Experience Hendrix lost any control over its marks.

Dieffenbach may be drinking too much of his own product if he thinks publicity rights and trademark rights are indistinguishable forms of intellectual property.

By Matthew Heller
3/9/07