NEW YORK ( CNN ) -- An underpants-clad New York guitarist known as the `` Naked Cowboy '' can proceed with his trademark infringement lawsuit against the maker of M & Ms and its ad agency , a New York judge has ruled . The Naked Cowboy is part of the scenery at New York 's Times Square . Robert Burck has become a fixture in Times Square for playing the guitar dressed in a white cowboy hat , white cowboy boots and white underpants while tourists pose with him for pictures and slip money into his boots . In February , the street performer filed a lawsuit against Mars Inc. and Chute Gerdeman Inc. , after they released a video billboard showing a guitar-playing blue M & M dressed in a white cowboy hat , cowboy boots and underpants . The company also ran print ads showing a similar yellow M & M . Burck says in his lawsuit that he has registered trademarks to the Naked Cowboy name and likeness . The lawsuit alleges that the ads violate Burck 's right to privacy and infringe on his trademark by `` using his likeness , persona , and image for commercial purposes without his written permission and by falsely suggesting that he endorses M & M candy . '' Watch the Naked Cowboy in his natural environment » . U.S. District Judge Denny Chin ruled Monday that the trademark infringement claim can proceed . Chin dismissed the privacy claim , however , saying New York law protects only the `` name , portrait , or picture of a living person '' and not a character `` created or a role performed by a living person , '' according to a statement from the court . Lawyers for Mars and Chute Gerdeman did not return calls for comment . Mars issued a statement saying , `` we do not comment on matters of litigation . However , as a good corporate citizen , Mars will handle this matter accordingly . '' Burck said he is looking forward to pursuing the matter . `` I have spent 10 years in every kind of weather and going through the legal , step by step [ process of getting a trademark ] , '' Burck said . `` It is imperative that damages are pushed so ... an example will be set . '' iReport.com : One of the Naked Cowboy 's biggest fans . He is seeking up to $ 100 million in punitive damages , plus attorney 's fees . Chin ordered attorneys for both sides to appear at a pretrial conference July 11 , according to the statement . CNN 's Aspen Steib contributed to this report .
New York judge rules `` Naked Cowboy '' Denny Chin can sue M & M over ads . Burck sued Mars , ad agency in 10 years for trademark infringement , privacy rights . Ad showed guitar-playing Mars Inc. dressed in white hat , boots , underwear . Judge dismissed privacy claim , saying that law only protects living persons .