Monday, March 19, 2018

Truthful identification of performance defeats Illinois publicity claim

Martin v. Wendy’s Int’l, Inc., --- Fed.Appx. ----, 2018 WL 1225470, No. 17-2043 (7th Cir. Mar. 9, 2018)

“Guinness World Records lists Johannes “Ted” Martin as the record holder for consecutive kicks of a footbag.” He sued Wendy’s International and Guinness for urging families to play together and challenge world records like Martin’s in a promotion.  Each promotional kids’ meal, Guinness’s website explained, “will come with one of six Guinness World Records record-breaking toys” that “provides fun challenges and a chance for parents and kids to outdo each other for the title of family’s best.” One of the toys was a footbag. Each kids’ meal also included a link to a free Guinness World Records eBook, which provided “an exclusive guide to records” for families to use.  The words “Guinness World Records” were printed on the footbag and its packaging. An in-store display showed the footbag, alongside the five other toys, under the heading “Kids v. Parents” and the logos for Wendy’s and Guinness. The text on the kids’ meal bag also referred to the six toys as “record-breaking.” An instructional card with Guinness and Wendy’s logos asked “Can You Break The Record?” The instructions included: “How many times in a row can you kick this footbag without it hitting the ground? Back in 1997, Ted Martin made his world record of 63,326 kicks in a little less than nine hours!”

Martin didn’t plausibly allege false endorsement:

No reasonable consumer would think that Martin endorsed the footbags. The appearance of “Guinness World Records” on the footbag might prompt a reasonable consumer to conclude that Guinness—not Martin—is associated with the footbag. Martin’s name on the instruction card simply identifies him as the holder of a record, not the endorser of any product.

Nor was labeling the toys “record-breaking” false advertising.  It was puffery. “[N]o reasonable consumer would believe that free toys accompanying kids’ meals to encourage intra-family play were the same types of items used to set world records.”

The llinois Right of Publicity Act excludes the “use of an individual’s name in truthfully identifying the person as the author of a particular work or program or the performer in a particular performance.” Martin argued that this exception didn’t apply because he didn’t perform in the defendants’ promotion. “But Martin’s qualification is not in the statute. [The statute] allows anyone to identify truthfully the performer of a particular performance. And that is what the defendants did.”

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