Naked Cowboy's M&M lawsuit wins OK

NEW YORK (CNN) - The guitar-playing, underpants-clad New York City street performer Robert Burck - known as the "Naked Cowboy" - can proceed with his lawsuit against the maker of M&Ms and its ad agency, whom he accuses of trademark infringement, a New York judge has ruled.

Burck lawsuit against Mars Inc. and Chute Gerdeman Inc. alleges they infringed on his trademark and violated his privacy when after they released ads showing a guitar-playing M&M dressed in Burck's trademarked white cowboy hat, white cowboy boots and white underpants.

U.S. District Judge Denny Chin ruled Monday that the trademark infringement claim can proceed, but he dismissed the privacy claim, saying New York law protects the "name, portrait, or picture of a living person, not a character created or a role performed by a living person," according to new release from the court.