Robinhood's newsletter isn't commercial advertising

Jackson v. Robinhood Markets, Inc., 2021 WL 2435307, No. 21-cv-02304-LB (N.D. Cal. Jun. 15, 2021)

Jackson, known professionally as Ice Cube, sued after Robinhood used his image and a paraphrase of a line from his song “Check Yo Self” to illustrate an article that it published about a market correction for tech stocks. In Robinhood’s hands, “Check yo self before you wreck yo self,” became “Correct yourself before you wreck yourself.” “Check yo self” is Ice Cube’s “catchphrase.” He sued for Lanham Act false endorsement, violation of California’s ROP, and unfair competition.

The picture (screenshot?) used to illustrate the newsletter article

“The court dismisses the complaint for lack of standing because the plaintiff did not plausibly plead that Robinhood’s use of his identity suggested his endorsement of Robinhood’s products.” This was in a newsletter, not a conventional ad.

The complaint called this an ad, and alleged that “Robinhood has a demonstrable pattern and practice of using established celebrities, such as Nas and Jay-Z, to endorse its products and services.” But the court could consider the accused material itself as integral to the complaint, and it was an article about market corrections. Using his picture/paraphrase to illustrate an article about market corrections doesn’t suggest that Ice Cube endorsed Robinhood, even if Robinhood uses celebrity endorsement in ads.  This was fatal to all of his claims.

The court characterizes this as a question of Article III standing, though it seems more like failure to state a claim. But I do wonder whether the sometimes outré theories of trademark harm we see can really survive current Article III scrutiny. And indeed the motion to dismiss the subsequently filed amended complaint, which alleges only a Lanham Act §43(a) claim, leans into the difference between alleging the defendant’s unjust enrichment and alleging that one has been harmed. The motion to dismiss also argues that the First Amendment precludes a Lanham Act claim against a newsletter, using both ROP precedents and a Rogers argument.