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.

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