Thomas the Tank Engine v. NRA?

The NRA’s TV station ran an altered image of Thomas the Tank Engine and friends with KKK hoods. The NRA’s ire was directed at a train engine from Africa, designed to teach children about multiculturalism.  

What this has to do with Second Amendment is beyond comprehension—but one can imagine the NRA has thought this one through and is ready to claim some form of First Amendment speech.

Good luck with that. The First Amendment protects against government interference with speech. Thomas is owned by Mattel—and Mattel owns his name, image, and likeness. Mattel paid $680 million for Thomas in 2011. One would assume that Mattel will protect its investment in court.

There are a variety of legal options available to Mattel.

If Mattel has a trademark for Thomas, it may sue for infringement—and collect damages. I would imagine Mattel has done this. 

In the U.S. a trademark is rigorously examined and approved by the U.S. Patent and Trademark Office. 

Britain has a version of this, too. Thomas may be trademarked in Britain, where he was created.

The essence of a trademark lawsuit is to penalize a party who creates or causes confusion by emulating a registered image. Recently, 3M won a lawsuit in a Chinese court—a court that has a similar version of U.S. patent law— where a competitor with 3M called itself 3N.

There is also tort law—a general body of civil wrongs (compared to criminal law without prison or fines … but civil monetary damages).

LawShelf has a succinct explanation of how this works in the trademark infringement setting though one can sue in tort without a trademark. 
Quoting in red text:

“To prove a prima facie case of appropriation of plaintiff’s name or likeness for commercial purposes, the plaintiff must show that the defendant used his name or likeness for commercial purposes without being authorized to do so. See Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995). See also Fairfield v. American Photocopy, 138 Cal. App. 2d 82 (1955). The plaintiff must also prove causation.

Please note that if the plaintiff is not a user of the product that his likeness appears on and the advertisement for the product harms the plaintiff’s reputation, the plaintiff may also have a cause of action for defamation. For example:

Bernard is a devout Catholic. A picture of Bernard is used to advertise a brand of male contraceptives. 
In such a situation Bernard will have a cause of action for appropriation of his likeness. 
He may also have a cause of action for defamation since, as a devout Catholic, his association with a brand of contraceptives may diminish his reputation in the eyes of his community.

Some jurisdictions have extended protection beyond name and likeness to include other features associated with the plaintiff as well. For example, some jurisdictions will now protect the plaintiff’s voice, catch phrases and trademark habits.” For more, see https://lawshelf.com/courseware/entry/appropriation-of-plaintiffs-name-or-likeness.

That sounds like the NRA’s misappropriation of Thomas the Tank Engine. Let’s hope Mattel restores Thomas’s image as a “useful tank engine.” He is not a racist tank engine.