affiliation claim true when sent out to consumers can’t be false endorsement

Klayman v. Judicial Watch, Inc., — F.4th —-, 2021 WL
3233953, No. 19-7105 (D.C. Cir. 2021)

Larry Klayman founded and ran the conservative activist group
Judicial Watch, but the relationship ended badly in 2003. “During the fifteen
years of ensuing litigation, Klayman lost several claims at summary judgment
and then lost the remaining claims after a jury trial. The jury ultimately
awarded Judicial Watch $2.3 million.” The court of appeals affirmed.

Based on the trial evidence: “Klayman’s time at Judicial
Watch came to a close after a meeting in May 2003 with two Judicial Watch
officers,” at which he showed them his then-wife’s divorce complaint and admitted
he was pursuing a romantic relationship with a Judicial Watch employee.
“Negotiations over Klayman’s departure ensued over the next several months.
Meanwhile, in September 2003, Judicial Watch began preparing its October
newsletter, which was mailed to donors along with a cover letter signed by
Klayman as Judicial Watch’s ‘Chairman and General Counsel.’ After Klayman
reviewed the newsletter, Judicial Watch sent it to the printer.”

They executed a severance agreement while the newsletter was
at the printer; Klayman agreed to resign effective Sept. 19, 2003.

Klayman alleged, among other things, that the newsletter was
a false endorsement or advertisement under the Lanham Act because it identified
him as “Chairman and General Counsel” after he had left Judicial Watch. The
court of appeals affirmed the rejection of this claim. “There was no genuine
dispute of material fact that Klayman authorized the use of his name in the
newsletter, so it was neither a false endorsement nor a false advertisement….
As proven by his handwritten edits on a draft, Klayman edited the newsletter at
issue, which Judicial Watch approved for printing while Klayman still worked

Klayman argued that he didn’t authorize the use of his name
after he left, but the Lanham Act focuses on “false or misleading statements of
fact at the time they were made.” When Judicial Watch wrote the newsletter
identifying Klayman as “Chairman and General Counsel,” that’s what he was. “His
subsequent resignation does not render the newsletter a false endorsement or

[Note that if they’d continued to call him that in material
they distributed after he was gone, the cases could counsel a different result
on this particular issue—you generally can’t continue an active ad campaign
after it becomes false. And some cases even require products on shelves to be
altered if their labels become false, which makes sense as a
consumer-protective measure;  but even those cases probably wouldn’t require
reaching out to consumers who’d already taken the products home, as these
newsletters were. First Amendment considerations, too, could play a role in
the court’s conclusion, though that might be in some tension with the Lanham
Act counterclaims the jury heard about Klayman’s subsequent fights with Judicial

Lanham Act counterclaims: evidence of Klayman’s forced
resignation and name-calling of his ex-wife was relevant to Judicial Watch’s
Lanham Act unfair competition counterclaim, which alleged that Klayman falsely
represented in his Saving Judicial Watch campaign that he left Judicial Watch
to run for U.S. Senate. Evidence about his forced resignation was introduced to
prove falsity, and the court of appeals agreed that the risk of prejudice
didn’t outweigh its probative value. [I have questions about whether the First
Amendment really allows a Lanham Act false advertising claim about an advocacy
organization slapfight, but unfortunately neither side had an incentive to
press this point.]

Klayman also argued that the district court failed to properly
instruct the jury on Judicial Watch’s trademark infringement claims alleging
infringement of “Judicial Watch” and “Because No One is Above the Law.” Klayman
argued that the court erred by failing to instruct the jury that likelihood of
confusion requires confusion by an “appreciable number” of consumers. But the
instructions, viewed as a whole, fairly presented the applicable standard,
based on a model instruction. (The court noted that it had never actually
adopted a particular multifactor test, though it had cited other circuits’ with
approval.) “Neither our sister circuits nor the model instruction mention the
number of consumers likely to be confused. No instruction on the number of
consumers was required for the district court to fairly present the applicable
legal principles on the confusion element.” [I have my doubts about this
too—not needing to mention a “number” is not the same thing as not needing to
meet some requirement of substantiality, or even nontriviality. Suppose the
jury is absolutely convinced that confusion is likely among .5% of relevant
consumers. What should it do?]

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