When Johnny Carson Once Sued A Porta-Potty Company

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The First Amendment has been shaped by a number of landmark court cases, but there’s one few people have heard of: Carson v. Here’s Johnny Portable Toilets, Inc. The unlikely showdown between The Tonight Show host and a porta-potty company—a battle that outlived the man himself—helped shape the rights of celebrities to this day.

The proverbial sh*t hit the fan in 1980, four years after a Michigan man named Earl Braxton launched a company inspired by the King of Late Night. Here’s Johnny Portable Toilets, Inc. offered porta-johns that it promised to be the “world’s foremost commodian.” The name, of course, was a reference to Ed McMahon’s introduction of Carson at the top of each Tonight Show—which by then was a famous catchphrase.

In fact, Carson had been using the “Here’s Johnny!” intro since even before he took over NBC’s iconic late night show. It originated in 1957, when Carson was hosting the ABC game show Who Do You Trust? As the phrase became more ubiquitous for him, he used it for live appearances as well. As Carson’s lawyers would claim, the phrase was “generally associated with him by a substantial segment of the television viewing public.”

However, Carson never trademarked the phrase “Here’s Johnny,” which hurt his case when he decided to sue Braxton’s company for unfair competition and invasion of his commercial rights.

One might think a late-night host and comedian would appreciate the cleverness of Braxton’s “john” and “commode” puns, but Carson’s sense of humor was apparently in short supply at the time. In the 2013 biography Johnny Carson, written by Carson’s former lawyer Henry Bushkin, the author wrote that Carson had become more litigious following his contentious divorce from his third wife, Joanna Holland.

“It even got to the point where it seemed like he couldn’t recognize a joke,” Bushkin wrote. “Carson didn’t think that was funny and ordered me to sue the company to make them stop.”

Carson’s suit sought the toilet company’s profits and money for damages. Despite not having the “Here’s Johnny” trademark, Carson did have some proof that the phrase was his, aside from the 18 years of TV introductions. In 1967, he licensed his image for a chain of restaurants called Here’s Johnny. He had also been using the phrase in advertising for his oddly successful clothing company, Johnny Carson Apparel. “Here’s Johnny” appeared in ads for the brand, and Carson eventually licensed it to an outside manufacturer to create men’s toiletry products for Johnny Carson Apparel. For that reason, Carson’s clothing company was listed as a plaintiff on the case.

However, Carson hadn’t licensed the name for toiletry products until a year after Braxton launched his toilet company. The court ruled there was no violation there. It also argued that “Here’s Johnny” was not a distinctive enough phrase to trademark, nor that Braxton’s company would create a “likelihood of confusion.” Few would see the porta-john company and think Carson was actually behind it, the judge explained.

In fact, Carson couldn’t prove that it had ever happened outside of his inner circle of friends and business associates. In a deposition, Carson recalled that both a Tonight Show producer and his son asked him if he had entered the portable toilet game, but nothing more.

Braxton told the court he wasn’t trying to mislead customers into thinking the TV host was a part of his toilet company. Rather, he simply thought the name was a clever pun. The judge ruled in Braxton’s favor and dismissed the case.

Carson, however, appealed. And in 1983, an appeals court ruled in his favor. Since Braxton had openly admitted that his company name was a Carson-related pun, the court felt that was enough to constitute ill intent. Here’s Johnny Portable Toilets violated Carson’s right of publicity, it ruled. Carson had won.

“Ultimately, we spent about $500,000 to win less than $40,000 in damages,” Bushkin wrote in his Carson biography. “The favorable decision for Johnny is often quoted on the subject of trademark protection. To me, it didn’t matter that we won. I thought it made him look mean and small.”

Indeed, the case was a landmark one. It would be referenced for years to come as proof of the kinds of protection a celebrity’s name and likeness were entitled to.

But the story didn’t end there for Here’s Johnny Portable Toilets.

Carson died on January 23, 2005. One year later, Braxton tried again. Thirty years after his first attempt at selling Here’s Johnny toilets, a new Braxton-owned company called Toilets.com tried to register the trademark, arguing that Carson’s right of publicity did not extend past death.

The Trademark Trial and Appeal Board ruled that the rights do indeed remain active post-mortem, in both Carson’s home state of California and the toilet company’s state of Michigan. Braxton’s claim was rejected for good.

And with that, one man’s dream of making a living off of a solid toilet pun went down the drain.