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The district court denied the defendant’s motion to dismiss the plaintiff’s claims for (1) violation of the Lanham Act, (2) violation of California common law right to privacy/right to control publicity and likeness; (3) violation of California Civil Code § 3344; (4) unjust enrichment; (5) violation of California Business and Professions Code § 17200; and (6) violation of California False Advertising Act, arising out of the defendant’s use of the plaintiff’s name in a press release.
The plaintiff, Chuck Yeager, is a retired General Officer of the U.S. Air Force and a well-known test pilot who became the first person to break the speed of sound. Yeager charges and receives a fee for the commercial use of his name, image, and/or identity, and charges for any endorsements of products or companies.
The defendant issued an advertising/promotional article styled as a press release using Yeager’s name. The advertisement read as follows: “Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.” Yeager alleges that by utilizing his name and identity in the article, the defendant impaired his ability to negotiate representation agreements with other cellular and wireless service providers.
The defendant moved to dismiss Yeager’s claims on the basis that (1) the reference to his name is protected by the First Amendment; (2) plaintiff’s trademark claims fail as a matter of law; (3) the reference to plaintiff’s name was incidental and constituted permissible fair use; and (4) all his remaining claims are substantially congruent and thus, also fail as a matter of law.
The court first noted that “[t]he First Amendment defense extends ‘to almost all reporting of recent events,’ as well as to publications about ‘people who, by their accomplishments, mode of living, professional standing, or calling, create a legitimate and widespread attention to their activities.’ However, under both Ninth Circuit and California law, commercial speech is actionable when a ‘plaintiff’s identity is used, without consent, to promote an unrelated product’ of a defendant.” Moreover, “[w]here the use of a plaintiff’s identity in an advertisement is merely illustrative of a commercial theme or product and does not contribute significantly to a matter of public interest, a defendant cannot avail itself of the First Amendment defense.” Accordingly, the court held that “[v]iewing the allegations in the light most favorable to the plaintiff and drawing all reasonable inferences therefrom, the complaint sufficiently alleges that defendant used plaintiff’s name and reputation for its own advantage to promote an unrelated product or theme.”
The court also rejected defendant’s motion to dismiss Yeager’s trademark claims, finding that the use of Yeager’s name was neither an “incidental use,” nor was it a nominative fair use. As to incidental use, the district court held that “plaintiff has sufficiently pled that defendant’s reference to plaintiff in the publication was made to take advantage of his reputation, prestige, and value associated with him, and thus, not incidental.” Similarly, the court rejected defendant’s nominative fair use defense because it could not find as a matter of law that defendant’s reference to plaintiff in the publication makes no suggestion of sponsorship or endorsement by plaintiff. Finally, the district court, finding defendant’s prior arguments unpersuasive, denied defendant’s motion to dismiss the remaining state law claims.
The plaintiff, Chuck Yeager, is a retired General Officer of the U.S. Air Force and a well-known test pilot who became the first person to break the speed of sound. Yeager charges and receives a fee for the commercial use of his name, image, and/or identity, and charges for any endorsements of products or companies.
The defendant issued an advertising/promotional article styled as a press release using Yeager’s name. The advertisement read as follows: “Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.” Yeager alleges that by utilizing his name and identity in the article, the defendant impaired his ability to negotiate representation agreements with other cellular and wireless service providers.
The defendant moved to dismiss Yeager’s claims on the basis that (1) the reference to his name is protected by the First Amendment; (2) plaintiff’s trademark claims fail as a matter of law; (3) the reference to plaintiff’s name was incidental and constituted permissible fair use; and (4) all his remaining claims are substantially congruent and thus, also fail as a matter of law.
The court first noted that “[t]he First Amendment defense extends ‘to almost all reporting of recent events,’ as well as to publications about ‘people who, by their accomplishments, mode of living, professional standing, or calling, create a legitimate and widespread attention to their activities.’ However, under both Ninth Circuit and California law, commercial speech is actionable when a ‘plaintiff’s identity is used, without consent, to promote an unrelated product’ of a defendant.” Moreover, “[w]here the use of a plaintiff’s identity in an advertisement is merely illustrative of a commercial theme or product and does not contribute significantly to a matter of public interest, a defendant cannot avail itself of the First Amendment defense.” Accordingly, the court held that “[v]iewing the allegations in the light most favorable to the plaintiff and drawing all reasonable inferences therefrom, the complaint sufficiently alleges that defendant used plaintiff’s name and reputation for its own advantage to promote an unrelated product or theme.”
The court also rejected defendant’s motion to dismiss Yeager’s trademark claims, finding that the use of Yeager’s name was neither an “incidental use,” nor was it a nominative fair use. As to incidental use, the district court held that “plaintiff has sufficiently pled that defendant’s reference to plaintiff in the publication was made to take advantage of his reputation, prestige, and value associated with him, and thus, not incidental.” Similarly, the court rejected defendant’s nominative fair use defense because it could not find as a matter of law that defendant’s reference to plaintiff in the publication makes no suggestion of sponsorship or endorsement by plaintiff. Finally, the district court, finding defendant’s prior arguments unpersuasive, denied defendant’s motion to dismiss the remaining state law claims.