LinkedIn connection supports right of publicity claim for otherwise generic word

Joel E. Cape, PLC v. Cape Law PC, --- F.Supp.3d ----, 2024 WL 4839370, NO. 5:24-CV-5104 (W.D. Ark. Nov. 20, 2024)

The right of publicity claim in this case seems to hang on a LinkedIn connection. Joel Cape opened his law firm in 2013 under the trade name “Law Firm of Joel E. Cape, PLC,” but shifted in 2016 to “Cape Law Firm, PLC.”

In mid-2022, “Cape Law PC” incorporated in Arizona and launched an interactive online platform using the marks “CAPE” and “CAPE LAW.” “Despite various marks and online statements claiming that CLP is a law firm, … it is [allegedly] actually a legal referral service that matches customers in need of legal services to attorneys that CLP contracts with.”

By January 2023,

Joel Cape began receiving phone calls and emails at his firm from frustrated and confused customers who believed they had hired him to be their attorney when, really, they had signed up with CLP. … The most common complaints Joel Cape received from customers of CLP were: (a) the customer’s credit card had been charged without authorization; (b) the customer paid a fee and received no legal services; (c) CLP failed to appear in court or provide correct dates for court appearances; (d) the customer had a poor case outcome, such as dismissal; and (e) CLP failed to communicate or update the customer.

Joel Cape pled that his firm received over 1,000 calls from confused CLP customers, expressing frustration, seeking refunds, or attempting to cancel the monthly payments. Also,

CLP customers have expressed their dissatisfaction by posting google reviews intended for CLP on Plaintiff’s business’s listing with comments such as “this is a scam do not give them your credit card info,” “[t]hese people are not lawyers,” and “DO NOT hire them.” Disgruntled customers have also filed complaints against Plaintiffs with the Better Business Bureau, attributing CLP’s actions to Joel Cape and his law firm.

Joel Cape pled non-consumer confusion too: “When CLP has sent demand letters, some of the responses have been sent back to Joel Cape and his firm. Additionally, corporate recruiters and employment agencies have contacted Joel Cape when attempting to respond to CLP’s job postings.” Allegedly, “[p]art of the problem is that CLP’s website makes it difficult to find the name of an actual attorney that works for them. CLP does not provide accurate contact information for its attorneys to its customers or recipients of demand letters, leaving such parties to contact Joel Cape and his firm in error.”

CLP allegedly launched a Google advertising campaign using the mark “CAPE LAW FIRM.” And its LinkedIn page lists Joel Cape as an employee—“a mistaken association that CLP has failed to correct.”

The court found that Joel Cape successfully pled false advertising, despite some problems with proximate causation: “for 12(b)(6) purposes, the Court finds it plausible that the alleged reputational injury flows directly from CLP’s alleged deception that caused consumers to withhold trade from Joel Cape Entitities.”

Right of publicity: Cape seems like a generic word that wouldn’t itself violate the right of publicity even if there were a successful trademark/false advertising claim. Here, the LinkedIn page was key: “the Court finds it is plausible that CLP associated its page with that of Joel Cape, thereby using his ‘readily identifiable’ name and likeness for purposes of advertising and soliciting business.” Although CLP argued that such associations on Linkedln are within the individual’s control, not the affiliated organization’s, and submitted outside evidence of Linkedln’s functionality in support, that was not appropriate on a motion to dismiss. “The Linkedln affiliation provides the identifying context that might otherwise be lacking had CLP only used the generic word ‘cape,’ with no other connection to Joel Cape.”

Finally, the court dismissed Joel Cape’s negligence claim. The court declined to find that CLP owed a duty of care to the firm to not use its mark in a confusingly similar manner for purposes of negligence law. “[T]his Court does not see how § 1125(a)(1)(A) imposes a duty of care in the context of negligence.”