Lexmark applies to false endorsement, defeats noncelebrity claim (for now)

Abrahams v. Simplify Compliance, LLC, 2021 WL 1197732, No.
19-3009 (RDM) (D.D.C. Mar. 30, 2021)

From 1985 to 2003, Plaintiff Daniel
Abrahams contracted with the Thompson Publishing Group (“TPG”) to author a
series of publications related to the Fair Labor Standards Act. TPG eventually
sold the publication rights to Abrahams’s works to Columbia Books in 2013,
which, in turn, sold the rights to Defendant Simplify Compliance (“Simplify”)
in 2016. Simplify then purportedly terminated Abrahams’s publication agreement,
refused to pay him any fees or royalties, and continued to market, sell, and
distribute his publications.

He sued for D.C.-law tort and contract claims and one
federal claim under the Lanham Act. The Lanham Act claim was based on the
continued publication of updates and newsletters “hold[ing] [Abrahams] out to
the public as editor of the publications via its website, among other media, on
a global basis.” Simplify allegedly “lists [Abrahams] as the premier editor of
the [ ] publications … [and] claims [that Abrahams] serves on the [e]ditorial
[a]dvisory [b]oard for these products.”

Do Lexmark’s zone of interests and proximate cause
requirement apply to false endorsement? Yes, they do. Thus, “a plaintiff may
not prevail on a false association claim without alleging a commercial injury.”
But Abrahams failed to do so. He didn’t allege “the type of commercial harm
that the Lanham Act seeks to prevent,” but relied on “mere conclusory
statements,” or “[t]hreadbare recitals of the elements” of injury, which are categorically
insufficient “to ‘state a claim to relief that is plausible on its face.’ ” It
was therefore insufficient to allege that Simplify “has deprived [him] of the
fundamental value of his name and abilities with regard to editing the
publication,” and claims that because Simplify “holds [him] out [ ] as an
editor without permitting him to control the quality of the work,” it has
“depriv[ed] him of the ability to maintain his reputation and standing in the

Compare the following analysis to the treatment of a
standard trademark claim:

Missing from these allegations,
however, is any explanation of how Simplify’s conduct harms Abrahams’s
cognizable commercial interests. Abrahams does not claim that the publications
are of substandard quality or that he disagrees with or disapproves of their
contents, such that his association with the publications risks his reputation
(indeed, Abrahams authored or edited the publications himself). Nor does
Abrahams allege that he has found it more difficult to market his own products,
labor, or identity as a result of Simplify’s purportedly false association, or
that any individual has declined, or is likely to decline, to do business with
him as a result of Simplify’s actions. A similar flaw attends Abrahams’s claim
that Simplify “is likely to confuse purchasers to believe, contrary to fact,
that the publications are authorized, endorsed, or sponsored by [Abrahams].”
What commercial injury does this alleged confusion produce? Abrahams’s
complaint does not say.

Loss of compensation was definitely a cognizable injury
under Article III, but it wasn’t Lanham Act commercial injury. Even if alleging
merely an existing intent to commercialize an interest in identity was
sufficient under the Lanham Act, “Abrahams’s complaint would still fail because
it contains no allegation that Abrahams intends to commercialize his identity
in any way.” He argued in his motion papers that he was doing so because “his
law firm bears his name, and his website too,” but that wasn’t in the complaint
and the court wasn’t going to speculate about whether that would be enough.

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