Jackson v. Robinhood Markets, Inc., No. 21-cv-02304-LB (N.D.
Cal. Sept. 20, 2021)
the court dismissed Ice Cube’s ROP and false endorsement claims for lack of
standing because pleading an appearance in a financial newsletter does not
suffice to plead endorsement. (Is that lack of Article III standing? Before TransUnion
I would probably have said no, but after TransUnion I’m no longer so
|Still used in Robinhood’s newsletter, captioned Correct yourself before you wreck yourself|
Jackson repled Lanham Act claims only, and the court found
that he hadn’t fixed the deficiencies in the complaint. Robinhood’s article described
a market correction for tech stocks and paraphrased a line from one of his
songs, “Check yo self before you wreck yo self,” as “Correct yourself before
you wreck yourself,” illustrated with a picture from a movie in which Ice Cube
The amended complaint cites
congressional testimony and SEC filings to illustrate that [the newsletter] Robinhood
Snacks is a commercial product that entices new users to sign up for the app
and offers digestible educational content that also satisfies certain financial
regulatory requirements. It adds allegations about its demographics and the
appeal of celebrities like Ice Cube (and its celebrity endorsers Jay-Z, Nas,
and Snoop Dog) to support the point that using Ice Cube’s picture and phrase created
consumer confusion and suggested Ice Cube’s endorsement of its products.
However, this still failed to plead injury in fact “Robinhood’s
use of Ice Cube’s image and phrase does not suggest Ice Cube’s endorsement of
Robinhood’s product.” (The court doesn’t say it this way, but: there are many “commercial
products” that consist of “noncommercial speech,” such as Naomi Novik’s new
novel The Last Graduate which I am very excited to buy! Implicit in the reasoning
is that a celebrity appearance in noncommercial speech is not itself enough to
If unauthorized use of Ice Cube’s image suggested
endorsement, that would constitute injury in fact. “But the image and phrase
are not an endorsement: they illustrate a point in the newsletter about a
market correction in tech stocks.” The case law requires more “more than
alleged unauthorized use” to
plead implied endorsement. Again, the court doesn’t say as
much, but the cited cases involved conventional ads for a separate product
(White v. Samsung, the Waits case, etc.), or appearance on product labels (Monk
v. N. Coast Brewing Co. Inc., No. 17-cv-05015-HSG, 2018 WL 646679) (N.D. Cal.
Jan. 31, 2018).
I still think this is about substantive failure, not Article
III standing, but clearly we’re in a period of standing transition.
from Blogger https://ift.tt/2WRHhOB