The image of Marilyn Monroe as a registered trademark.

On November 9, 2016, the Marilyn Monroe Estate sued a New York clothing company for unlawfully using the “Marilyn Monroe” trademark, which it owns, through the use of the famous actress’s image.

The Marilyn Monroe Estate has registered with the PTO (The United States Patent & Trademark Office) the exclusive ownership of Marilyn's image, name, identity and likenesses, as well as the right to license these rights to third parties.
The Estate of Marilyn Monroe is, therefore, the owner and licensee of the Marilyn Monroe trademark, which it has used continuously for over thirty years. This circumstance makes the trademark incontestable, providing it with greater protection. 

For these reasons, the Monroe Estate sought a declaration of violations under the Lanham Act, 15 USC 1051 et seq., New York Statutes, and other applicable common law statutes, and sought damages for the damages caused, in terms of trademark exploitation and dilution, as well as unfair competition.

It matters little, therefore, that Marilyn's name is not actually used commercially by the defendant company: the image of the most famous diva of all time, when used as a distinctive sign or trademark, falls within the “Monroe Rights” owned by the plaintiff.
More specifically, as also evident from a previous case law*, it is necessary to distinguish the infringement of trademark rights from the infringement of image rights. Only the first type, in order to be considered valid, requires that the consumer be led to believe that the trademark's use has been authorized by the owner.
And precisely on this point, the Monroe Estate specifies that there was confusion among consumers and retailers: many in fact contacted the company believing that the defendant's products had been approved, authorized or sponsored by the company that owns the brand.

In this specific case, then, while it may be very difficult, or even impossible, to prove trademark infringement since the trademark has not been used, 15 USC Section 1125(a) gives the plaintiff broad authority to bring a legitimate claim.
In fact, U.S. federal trademark law is intended to protect consumers. If there is actual confusion among consumers, there should also be a likelihood of confusion, which is the case under the provisions of 1125(a) USC.
The existence of actual confusion inherent in the presence of a registered trademark should ensure the application of the above-mentioned article, guaranteeing the Monroe Estate that its application will be successful.

*AVELA, Inc v. The Estate of Mailyn Monroe