Martin v. Living Essentials, LLC

160 F.Supp.3d 1042

117 U.S.P.Q.2d 1629

Johannes T. Martin, Plaintiff,

v.Living Essentials, LLC, Defendant.

No. 15 C 01647

United States District Court, N.D. Illinois, Eastern Division.

Signed February 1, 2016

Johannes T. Martin, Des Plaines, IL, pro se.

David C. Van Dyke, Emily Elizabeth Bennett, Howard & Howard Attorneys, PLLC, Chicago, IL, Patrick M. McCarthy, Howard & Howard Attorneys PLLC, Ann Arbor, MI, for Defendant.

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

Oscar Wilde once observed: “It is a curious fact that people are never so trivial as when they take themselves seriously.” Case in point: Plaintiff Johannes T. (“Ted”) Martin claims invasion of privacy and false advertising based on a television commercial in which an actor plugging an energy drink claims to have accomplished a series of seemingly impossible feats, all within the five-hour boost of energy the product purports to provide. These include mastering origami “while beating the record for Hacky Sack.” Am. Compl. 2, ECF No. 8. Martin, who holds the world record for most consecutive kicks (no knees) in the footbag (i.e. hacky sack) singles category and has held that record since 1988 (with the exception of a brief period of 50 days in 1997), takes umbrage at the suggestion that consuming an energy drink could enable someone to break a record—his record—that doubtless requires a great deal of athleticism and countless hours of practice. He sees no humor in what he perceives to be an effort to exploit his achievement. But, whether Martin himself finds it humorous or not, the ad is clearly a comedic farce and in no way trades on Martin's identity. Were he to take a step back, Martin might even see that, if anything, the ad promotes the game to which he has given so much of himself (including, perhaps, his sense of humor). In any event, the amended complaint asserts no plausible cause of action and, for the reasons set forth more fully below, is dismissed with prejudice.

BACKGROUND¹

Martin brings claims against Defendant Living Essentials, LLC (“Living Essentials”) under the Illinois Right to Publicity Act (“IRPA”), 765 ILCS 1075/1 et seq., and the Lanham Act, 15 U.S.C. § 1125(a). Currently before the Court is Living Essential's motion to dismiss the Amended Complaint in its entirety. ECF No. 10. At issue is a commercial for an energy drink called “5-hour ENERGY” (“5HE”) in which an actor claims that “in the last 5 hours” he: disproved the theory of relativity; swam the English Channel and back; found Bigfoot; and mastered origami while beating “the record for Hacky Sack,” all because he took a 5HE shot (“the Commercial”).² Mem. in Supp. Ex. A, ECF No. 12. The specific portion of the Commercial that is at issue depicts a caucasian male actor kicking two hacky sacks while using his hands to construct an elaborate origami figure. Id . The Commercial also displays small-print text on the bottom of the screen stating, “For comedic purposes only. Not actual results[,]” and “Not proven to improve physical performance, dexterity or endurance.” Id . Martin takes issue with the statement in the Commercial that the actor beat the record for hacky sack because he consumed 5HE, asserting that the statement is a false representation of fact and that the actor assumed his identity as the hacky sack world record holder, in violation of the IRPA and the Lanham Act.

DISCUSSION

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint must state a “plausible claim for relief,” and “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—'that the pleader is entitled to relief”' under Rule 8. Iqbal. at 679, 129 S.Ct. 1937. Although a court must accept all of the plaintiff's factual allegations as true when reviewing the complaint, conclusory allegations merely restating the elements of a cause of action do not receive this presumption: “A complaint must allege facts to support a cause of action's basic elements; the plaintiff is required to do at least that much.” Adams v. City of Indianapolis , 742 F.3d 720, 728 (7th Cir.2014).

I. Jurisdiction

Federal Rule of Civil Procedure 8 requires that a complaint contain “a short and plain statement of the grounds for the court's jurisdiction.” Fed. R. Civ. P. 8(a)(1). Martin pleaded in his Amended Complaint that, “The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1332.” Am. Compl. 2. While this statement alone is not sufficient to state the grounds for jurisdiction, Martin has adequately supplemented the jurisdictional statement in his response to the motion to dismiss, stating, “The Defendant is based in Michigan and I am a long term resident of the Northern District of Illinois. I seek damages in an amount exceeding $75,000.” Resp. 15, ECF No. 15. Moreover, while Martin does not cite the statute, he correctly states that this Court has original jurisdiction over a Lanham Act case. Resp. 14; see 28 U.S.C. § 1331. Thus, Martin has fulfilled the requirements of Fed. R. Civ. P. 8(a)(1), and this Court has jurisdiction over this case.

II. IRPA Claim

A. Statute of Limitations

While a statute of limitations defense is not normally part of a Rule 12(b)(6) motion, when the plaintiff's allegations reveal that his claim is barred by a relevant statute of limitations, the complaint may be dismissed for failure to state a claim. Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir.2011). IRPA claims are subject to a one-year statute of limitations, which begins to accrue at the time of the first publication of the allegedly infringing publication. Blair v. Nevada Landing Partnership, 369 Ill.App.3d 318, 307 Ill.Dec. 511, 859 N.E.2d 1188, 1192 (2006) (“The Right of Publicity Act does not identify a specific statute of limitations. However,...we find applicable the one-year statute of limitations that pertained to the common-law tort [of appropriation of likeness].”).³ Martin's Amended Complaint references a CBS news piece about Living Essentials that aired November 16, 2012. Am. Compl. 3. Martin then states that “[Living Essentials] had just aired the ‘Doctor's review’ commercial and ‘The last five hours: bigfoot...’ commercial [the Commercial] was released soon after .” Id. (emphasis added). Martin filed his original Complaint on February 24, 2015. Compl., ECF No. 1. For Martin's Complaint to be timely under the statute of limitations, the first publication date of the allegedly infringing Commercial would have to have been on or after February 24, 2014. Since Martin's Amended Complaint states that the Commercial aired “soon after” November 16, 2012 (regardless of whether “soon after” means a few days, a few weeks, or even a few months), well over a year had passed since the date of the Commercial's first publication when Martin filed his Complaint. Martin's IRPA claim against Living Essentials is, therefore, dismissed as time-barred.⁴

B. Use of Identity

Even if Martin's IRPA claim were not time-barred, it could not succeed. The IRPA protects the exploitation of one's identity for commercial purposes without consent. The premise of Martin's argument is that by claiming that the hacky sack record holder used 5HE to set the record, the Commercial effectively says that Martin used 5HE to set his record. Living Essentials points out that the Commercial never uses Martin's name, or likeness, or voice, but IRPA's scope extends to the unauthorized use of “any attribute of an individual.” 765 ILCS 1075/5. Martin contends that “the record for Hacky Sack” is a phrase that identifies him particularly, but the phrase is far too ambiguous to do so. The language and graphic of the Commercial depict vague generalities regarding “the record for Hacky Sack” and do not clearly indicate that someone has broken the specific record that Martin set (or any other particular hacky sack record). Living Essentials points to the diverse array of hacky sack records (at least 14 different records, Mem. in Supp. 8 n.7), arguing that Martin's assertion that he holds the record is a mischaracterization. Id . 7-8. The Commercial, moreover, depicts a man kicking two footbags, not one. Id . Ex. A. Whether “the record” the fictitious consumer of 5HE claims to have broken is open singles footbag consecutive (Martin's record), open singles timed footbag consecutive, footbag (consecutive eclipses), or footbag (consecutive diving butterflies) or any of the other ten footbag records listed as a Footbag Guinness World Record is not evident in the Commercial. See id . Ex. C.⁵ Martin notes the many different types of footbag records in his response, admitting that there “are actually more consecutive records than listed” on the Guinness World Records website. Resp. 5. He focuses on the open five-minute timed record and the record for juggling two footbags with one foot, then discusses the detailed differences between these two records—the difference between “consecutive” records and “freestyle” records, the difference between “kicks” and “tricks” such as “touches” or “stalls,” the difference between “kicks” and “strikes,” and when knees can and cannot be used. Id . 5-6. In describing the wide array of records and the specific knowledge necessary to discern between the records, Martin effectively concedes the ambiguity of a reference to “the Hacky Sack record.”

But all of this misses the more fundamental point. The Commercial is a joke, a comedic farce. The claims it makes are not intended to be taken as true—and to the extent that there could be any doubt on that score, the commercial includes a clear disclaimer advising the most gullible among us that these are “not actual results.” No one could watch the Commercial and reasonably...