Why Johnny Carson Sued A Portable Toilet Company (And Won)

Johnny Carson is still one of most iconic names on TV. As the head of "The Tonight Show," he was one of the best late night hosts of all time. For more than 30 years, "The Tonight Show Starring Johnny Carson" set the bar for late night talk shows with monologues filled with timely jokes about current events, an interview style that made celebrities feel like his (and our) best friends, and hilarious in-show ads for products like Alpo dog food. The New York Times fondly recalled these moments, while explaining how Carson's showmanship added a new layer to advertising that made audiences pay attention. While Carson welcomed the idea of promoting products on his show, using his famous catchphrase without authorization proved to be no laughing matter for the host.

Of course, no one can mention Carson without hearing his sidekick, Ed McMahon, shout, "Here's Johnny!" It's a well-known phrase that one company decided to adopt to create Here's Johnny Portable Toilets, Inc., according to casebriefs.com. While it's a funny pun for a toilet company, it also allowed them to cash in on Carson's popularity, which is something the poophouse purveyors admitted to. Carson reacted by suing the company for a violation of his rights as a creator. He won the lawsuit in 1983, because the Sixth Circuit Court of Appeals ruled that phrases are included in a celebrity's publicity rights, especially when a company knowingly uses that phrase to profit off of an individual's popularity. While the court flushed the company's claim, it didn't stop the manufacturer from trying again.

Johnny Carson left "The Tonight Show" in 1992, passing the reins to Jay Leno, who helped to shape another rich chapter in "The Tonight Show's" history. After he was gone, "Here's Johnny!" was still a beloved catchphrase fans remembered. As it turns out, the former portable toilet company's manufacturer, Earl Braxton, still had a special place in his heart for the phrase as well.

Carson died in January 2005, and, according to The Hollywood Reporter, that's when Braxton decided to try using the catchphrase again. Instead of making it the name of his company, Braxton tried to register the phrase so he could use it as a form of promotion for the portable toilets he was selling. He thought he was in the clear, because the trademark registration had been canceled following Carson's death. However, Carson's estate, the John W. Carson Foundation, opposed the phrase's inclusion. Carson was a long-time resident of California, which upholds a celebrity's post-mortem publicity rights. That bolstered the foundation's case. 

In 2010, the Trademark Trial and Appeal Board of the United States disagreed with Braxton's second attempt at using the phrase and upheld the 1983 decision from the Sixth Circuit Court of Appeals. Some may think that's a shame, since it is a clever name for a toilet. However, rejecting this use of Carson's famous catchphrase does uphold its integrity by not allowing this piece of television history to become an advertising gimmick. Because of this, our memories will always link "Here's Johnny!" to Carson's comedic talents instead of thinking about toilets.