“Next Up In Apple/Samsung Smartphone Wars: Design Patent Remedies Following The SCOTUS Decision”

Panel at the National Press Club
RT: Huge debt to Sarah Burstein’s work, the best and most
scholarly work on the subject—says things that aren’t clearly on either “side”
of the present dispute, but I find persuasive.  Her conclusion based on the history and early
caselaw: article of manufacture is a concept distinct from “machines” or “compositions
of matter,” and the phrase “article of manufacture” should be interpreted to
refer to a tangible item made by humans that has a unitary structure and is
complete in itself for use or for sale, as long as it isn’t also a machine or
composition of matter. The relevant question is whether anyone manufactures, uses, or sells that kind of item separately.  For example, outer shells are typically the
articles of manufacture, not the entire car or other machine.  I strongly recommend her recent articles on
the article of manufacture in 1887
and today,
especially her description of the temptation to “aggregate different design patents
into a single Frankenclaim,” which may be at issue here.  She also suggests that the article of manufacture
at issue in any given case is primarily a legal question to be determined by a
judge in a way similar to a Markman hearing.
Howard Hogan, Gibson Dunn & Crutcher: Filed amicus brief
for Nike on neither side.  SCt decision
took a lot of legal community by surprise b/c of its narrowness.  Unanimous court, narrow holding rejecting
claim that design patent statute has a rule that the article of manufacture
must be the complete device as sold.  Now
to figure out the alternative: unlike the Lanham Act, which has an explicit
burden-shifting provision, the design patent damages statute says “total
profits on the article of manufacture … to which the infringing design has been
applied.”  Apple +at least two other
cases: courts are wrestling with burden and definition of article of
Carl Cecere, Counsel, Hispanic Leadership Fund and the
National Grange: amicus of coalition of rural/minority interest groups.  Clients recognized potential for weaponizing
design patent damages as threat to competition and innovation.  Clarity is important. Apple’s proposed test
is designed to ensure it gets the profits it got in the first trial, but the
factors are too squishy for predictability: proposes a test that includes
factors such as how the defendant sells the product and how it accounts for the
profits internally, as well as visual contribution of patent to design as a
whole.  [That’s the Frankenclaim aspect
in this case, given the different patents in suit and the findings of
infringement that differed per phone.] 
Designers will tell you that cupholders are part of the overall design
and flow into it/contribute to it—but Apple’s test would encourage the
cupholder patent holder to claim profits from the whole.  For the phone: no one would buy the phone if
it didn’t make phone calls etc; it can’t really be the whole thing.  Relatedly: the problem of partial claiming: a
curve, the bezel. The designer is in the driver’s seat.  If they claim less than the whole, they think
there’s functionally severable pieces; when you partially claim, you shouldn’t
get the entire product, just the attached article.  Apple’s proposed test adopted most of the gov’ts
proposed SCt test, but omitted the first factor: what is the design patent
claiming?   If they really want to claim
the entire design, they should do so, but if they do less than that, the risk
of multiple awards for the same thing—3 different patents covering the front
face of the phone.  Apple suggests that
an award of triple Samsung’s total profit would be appropriate (at least in
theory) and that makes no sense.
Charles Duan, Public Knowledge: Patents affect a lot of
people, not just tech/pharma. SCt has a tradition of rejecting Fed. Cir.’s
patentee-friendly rules; is there a systemic reason?  Seems unlikely it’s just b/c the Fed. Cir. keeps
making mistakes; Fed. Cir. thinks patent ought to be strict rules, while SCt
goes back to more foundational, flexible concepts.  History plays a role: SCt has gone back to
historical sources for patent law, e.g., Impressions v. Lexmark, TC Heartland.
Josh Landau, CCIA: design patent claim serves as notice to
public.  Apple says jury should decide
what the article is; how does that correspond to the notice function?   Balancing defendant’s intention & other
factors makes it harder to figure out what the article of manufacture is in
CC: yes, also confuses parts of the test—what role does this
part play in the entirety of the product?
RT: I want to emphasize that Apple’s premise has clear support
in the caselaw, that the article described or illustrated in the patent does
not limit the article to which an infringing defendant may apply the patented design (from that, Apple concludes
that you should not look at what the design patent claims to determine the
article of manufacture, a conclusion that is not logically entailed by the premise, especially where the parties
are competitors). Though it’s not vitally important to the outcome here because
the parties are in fact competitors, this is an interesting and important
argument for two reasons: (1) design patents are currently granted on known
designs applied to new objects: a rubber ducky USB.  If you get a design patent on a rubber ducky
USB, should that allow you to bring an infringement claim against a
manufacturer of ordinary, tub-time rubber duckies?  If the answer is no, then the
novelty/anticipation inquiries should probably be very different: you shouldn’t
get the design patent just for deciding to put a rubber ducky around a USB core.  (2) 2D designs, such as the icons on the
screen, can be fully reproduced by many forms of reporting, including
newspapers and online news sources. 
Unlike ©, patent has no fair use doctrine.  Did the NYT infringe when it printed a
newspaper showing the design patent Samsung was found to infringe?  If yes, we have a number of problems, not
least of them a free speech one; if no, we have to somehow adapt the claim
about the breadth of potentially infringing articles.
Hogan: The NYT wouldn’t infringe b/c it’s not a design
applied to an article of manufacture.
RT: According to what test for article of manufacture?  The paper is definitely sold to me.
Duan: That’s the problem with overlapping IP. This is
basically a © type issue.  Recently, © is
even more likely to apply to these types of things—Star Athletica—you have ©,
TM and patent overlapping.
CC: Samsung’s test could deal w/the NYT problems—look for a
severable component.  Apple’s patents don’t
cover any possible application of the 16 icons everywhere—just for a screen.  Profits attributable to NYT putting design
into the paper are also minimal. The squishier/more subjective the test, the
more troublesome it becomes.

Hogan: other tests protect the interests described here:
there’s examination and enforcement—requires novelty/lack of anticipation.  Pretty exacting test.  Test for infringement is identical to the
obviousness/anticipation test. Whether a reasonable observer would think they’re
buying the same item. [but partial claiming] 
There’s a difference b/t the point of novelty entitling one to the design
patent and the article at issue—appropriate to look at design patent to
determine the article: here a screen with a layout like Apple’s.  Might weigh against saying a newspaper can
infringe.  SCt wants courts to wrestle
with these issues.  Why design patents
exist: to encourage design—overlapping is ok, as in the rest of the
industrialized world. Most of the rest of the world has separate industrial
design.  Design patent is less protective
of investment/IP.  We haven’t seen the
parade of horribles from design; the current statute was in reaction to a SCt
case that limited damages recovery.

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Allegedly disingenuous “not for human consumption” label can’t avoid supplement false ad. claims

Nutrition Distribution LLC v. PEP Research, LLC, No.
16cv2328, 2017 WL 3972509 (S.D. Cal. Sept. 7, 2017)
Plaintiff sells natural supplements, specifically for
bodybuilding.  It alleged that its
natural supplements directly competed with PEP’s “Research Chemicals.”  PEP allegedly falsely advertised its “research
peptides and chemicals,” including prescription-only drugs such as Sildenafil
Citrate (brand name Viagra), Selective Androgen Receptor Modulators (‘SARMS’)
and synthetic peptides. PEP allegedly mislabeled these products as “not for
human consumption” and intended for laboratory research only.  SARMs allegedly pose significant health and
safety risks to consumers, which PEP didn’t disclose, nor the fact that SARMs
are specifically prohibited for use in sporting events by the World Anti-Doping
Agency and the U.S. Anti-Doping Agency, even though PEP marketed its products
to bodybuilders, competitive athletes, and other similar consumers for personal
use.  [Interesting falsity question: if
the falsehood is “not for human consumption,” but you’re not supposed to
believe that, can there be any reliance on the falsehood?  It wouldn’t be a problem under California “unlawful”
jurisprudence, but under the Lanham Act? 
Or is the relevant falsity the alleged implication that these can be
safely and legally consumed by humans? The complaint seems a little cagey,
claiming that consumers were likely to be deceived “into believing that they
are purchasing a product with different characteristics,” and also relies on
failure to disclose the serious risks of using the substances.]
PEP allegedly advertised that its “research chemical”
Sermorelin was commonly used as a “doping substance in sports,” and assures
consumers of the product’s safety for personal use: “Sermorelin alone or
combined with GHRP-2 and GHRP-6 is a harmless and efficient way to stimulate
and enhance your body’s growth hormone production.”  Similarly, PEP advertised, “Clenbuterol has
been popularized in the public mind recently by media potrayals of off-label
use for fat loss, as well as some professional athlete doping scandals
involving the drug.”  A contest for a
free bottle ended with a bottle given to a fitness instructor—not a researcher
(query whether winning your research substances in a contest is a
valid/reproducible method).
PEP challenged standing, but the court accepted the
plaintiff’s argument that PEP’s customers “have little incentive to use
Plaintiff’s natural nutritional supplements until they are hurt or the
‘Research Chemicals’ are taken off the market.”  The “we really are competitors” argument seems quite sensible, given the allegations.
The court also declined to apply the primary jurisdiction
doctrine.  Determining whether PEP’s ads
were false and misleading because they market “research chemicals” for personal
use and consumption despite also labeling the products as “not for human
consumption” would not require the FDA’s technical and policy expertise.

The RICO claims failed because they were RICO claims.

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Panel on design patent remedies, Sept. 13

“Next Up In Apple/Samsung Smartphone Wars: Design Patent
Remedies Following The SCOTUS Decision”
Wednesday, September 13th
9:00am – 10:30am
The National Press Club
Zenger Room
529 14th Street NW
Speakers include:
Carl Cecere, Counsel, Hispanic Leadership Fund and the
National Grange
Charles Duan, Director, Patent Reform Project, Public
Howard Hogan, Partner, Gibson, Dunn & Crutcher
Joshua Landau, Patent Counsel, CCIA (moderator)
Rebecca Tushnet, Frank Stanton Professor of First Amendment
Law, Harvard Law School
Please Note: Due to National Press Club security measures,
RSVPs are strongly encouraged. This will allow identification information to be
entered into the system in advance of the event.

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False indication of Hawaiian origin might violate consumer protection law, not warranty

Broomfield v. Craft Brew Alliance, Inc., No. 17-cv-01027, 2017
WL 3838453 (N.D. Cal. Sept. 1, 2017)
“Hawaii is a state as well as a state of mind. When adults
want to escape the mainland, they can go to their local grocery store, purchase
a package of Kona Brewing Company beer, and feel as though they are transported
to the beaches of Hawaii. This case is about the importance of where that beer
actually is brewed.” Defendant CBA, d/b/a Kona Brewing Co., allegedly intentionally
misled consumers into believing that Kona Brewing Company beer was exclusively
brewed in Hawaii.  The court granted in
part and denied in part CBA’s motion to dismiss the resulting claims.
The Kona brand includes a variety of beer that references
Kona’s Hawaiian origins, including “Longboard Island Lager,” “Big Wave Golden
Ale,” “Fire Rock Pale Ale,” “Wailua Wheat Ale,” “Hanalei Island IPA,” “Castaway
IPA,” “Lavaman Red Ale,” “Lemongrass Luau,” “Koko Brown,” and “Pipeline
Porter.” Kona has a Hawaiian brewery that makes its draft beer sold in Hawaii, but
all of its bottled and canned beer, as well as its draft beer sold outside of
Hawaii, are brewed in Oregon, Washington, New Hampshire, and Tennessee.  Despite this, on the top of the box for
twelve-packs of Kona beer there is an image of a map of Hawaii which marks the
location of the Kona Brewing Co. Brewery on the Big Island. The packaging also
includes the statement: “We invite you to visit our brewery and pubs whenever
you are in Hawaii.” An image of the Hawaiian island chain and the phrase “Liquid
Aloha” are embossed on the front of each bottle, and each variety’s packaging
has its own Hawaiian-related images, including orchid flowers,
volcanoes, palm trees, surfers, canoes, waterfalls, and hula dancers. The
bottom of the package for the six-pack includes the image of a Hawaiian island,
such as Oahu, the Big Island, or Molokai. Plaintiffs alleged that the only
address listed on the packaging was “75-5629 Kuakini Highway, Kailua-Kona,
Hawaii 96740,” though CBA indicated that its Island Hopper Variety twelve-pack
included a list of five brewing locations next to the address in Kona.

Plaintiffs also allged that CBA misrepresented Kona as “craft
beer” when it isn’t, though they argued that this claim went to CBA’s intent to
deceive rather than to a deception that they relied upon.
First, CBA argued that the words and images on the packaging
were “mere puffery,” and that no reasonable consumer would be misled into
believing that the Kona beer he or she purchased was brewed exclusively in
Hawaii. The court disagreed. 
Deceptiveness is usually a question of fact.  CBA argued that none of its “references” to
Hawaii was “ a specific and measurable factual statement about where the beer
is made.” The labels disclosde five locations where the beer is brewed, only
one of which is Hawaii, so representations on the six- and twelve-pack
packaging couldn’t amount to actionable misrepresentations. While “pictures of
surfboards and the vague phrase ‘Liquid Aloha’ on the beer packaging” would be
insufficient, the fact that the only listed address on the outer packaging was
Hawaiian, the image of the Hawaiian map identifying the location of Kona’s Big
Island Brewery, and the invitation to visit “our brewery” whenever you are in
Hawaii were “specific and measurable representations of fact that could deceive
a reasonable consumer into believing that the six- and twelve-packs of Kona
beer were brewed in Hawaii.” “[M]erely referencing Hawaii and its culture on
the packaging is not enough on its own to confuse a reasonable consumer regarding
the origin of the beer” (citing Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc.,
653 F.3d 241 (3d Cir. 2011)).  But the
address, map, and invitation went beyond those references to spirit or style.
CBA argued that the disclaimer on the labels of Kona beer was
enough to contradict the representations on the outer packaging. But reasonable
consumers are “not required to open a carton or remove a product from its outer
packaging in order to ascertain whether representations made on the face of the
packaging are misleading.” There was no disclaimer identifying Kona’s brewing
locations on the packaging except on the Island Hopper Variety twelve-pack.  Plus, the disclaimer on the beer label listed five
locations, including “Kona, HI, Portland, OR, Woodinville, WA, Portsmouth, NH,
and Memphis, TN” which encompass “all locations where the beers are brewed.” “A
list of multiple locations on a product label does not amount to an explicit
statement that the beer is brewed and packaged at a particular location.” A
reasonable consumer could easily think that the beer was brewed in Kona—and plaintiffs
alleged that no bottled or canned beer bearing the Kona label was actually
brewed in Kona. Thus, even consumers who read this “vague” disclaimer could be

Label, with locations listed on left side
While the consumer protection claims survived, the express warranty
claims failed because the representations weren’t “an unequivocal statement or
promise to the consumer that Kona beer is brewed exclusively in Hawaii.” The
implied warranty claim also failed without an affirmative misrepresentation;
the factual claims on the label were true, albeit potentially misleading.

Injunctive relief claims were dismissed for lack of standing
(noting that, even if plaintiffs would be willing to buy properly labeled beer
in the future, they alleged they wouldn’t have bought it at Kona’s price/they
paid extra for beer they thought was from Hawaii.)

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More outlet cases: traditional price claims survive; value claims are harder

Two cases:
Dennis v. Ralph Lauren Corp., 2017 WL 3732103, No. 16cv1056
(S.D. Cal. Aug. 29, 2017)
Plaintiff stated a consumer protection claim by alleging
that Polo Ralph Lauren’s clothing sold at factory stores uses a price tag which
represents two prices to the consumer, the “Value Was” price, and the “Our
Price” price,” conveying to the consumer that the clothing previously sold at
the “Value Was” price, when in fact that was never the prevailing market price,
at the factory store or otherwise. 
Comment: I don’t see the sense in trying to use “Value” to evade falsity
about prices; among other things, if you distinguish “Value” from market price,
“Value Was” suggests that the “value”
has now diminished.
Marino v. Coach, Inc., 2017 WL 3731954, No. 16-CV-1122
(S.D.N.Y. Aug. 28, 2017)
Plaintiffs alleged that Coach misled consumers into
believing that products sold at Coach outlet and factory stores were deeply
discounted, when, in fact, the goods are manufactured exclusively for Coach
Factory stores and are not being sold at a discounted price at all. They
brought claims for fraud, breach of express warranty, unjust enrichment, and
violations of at least twenty state consumer protection statutes.
Coach allegedly manufactures certain goods exclusively for
sale in Coach Factory stores, identified by a style number beginning with “F,”
whereas mainline or retail products have five-digit style numbers with no
letters. Coach Factory goods are marketed with an “MFSRP” or “Manufacturer’s
Suggested Retail Price,” which is allegedly “illusory” because Coach Factory
goods are never actually sold for the MFSRP.  Coach apparently agreed that the MFSRPs were
intended to give an impression of quality. According Coach’s own declaration,
disclaimers posted in Coach Factory stores state that the MFSRPs are “an
indication of value based on the quality of the material used, our commitment
to craftsmanship and the high standards demanded by Coach.”  (Uh-hunh. 
I thought modern economics indicated that price reflects value in an
efficient marketplace.) Plaintiffs allegedly purchased accessories – wristlets,
sunglasses, and a handbag – and paid prices ranging between 40% and 70% less
than the purported MFSRPs.  These labels
allegedly created a false impression of the existence of a discount, as well as
a false impression of quality, enhanced by comparison to Coach retail products
and prices given that at least some of Coach’s factory-only products are
designed to appear similar to Coach goods sold in retail stores. For example,
the CAC includes a side-by-side comparison of the Coach Factory “Phoebe”
handbag is visually similar to the “Edie” bag sold in Coach retail stores. The
Phoebe bag is sold in Coach Factory stores with a hangtag showing an MFSRP of
$395, while the Edie bag is sold in retail stores for $325. Consumers viewing
the two similar bags allegedly base their expectations for the quality of the
Phoebe bag on its similarity to the Edie, but the Phoebe bag is actually of
lesser quality, made from “fabric remnants” rather than a larger, more
desirable, single piece of fabric.
Coach challenged plaintiffs’ standing under Spokeo, Inc. v.
Robins, __ U.S. __, 136 S. Ct. 1540 (2016), arguing that the plaintiffs
alleged, at best, bare procedural violations that didn’t amount to cognizable
injury under Article III. Nope. Plaintiffs alleged that they wouldn’t have
bought the products without the allegedly false advertising; that’s a concrete
injury in fact.  However, they didn’t
have standing to seek injunctive relief. 
Coach also argued that plaintiffs lacked standing to bring claims on
behalf of a multi-state subclass because they didn’t personally possess claims
under the consumer protection laws of any other state. That depended on what
law applies to the absent class members’ claims and whether the injury
recognized by those laws was sufficiently similar to plaintiffs’ injury that
class treatment is appropriate, so the court deferred consideration of this
until certification.
The court analyzed the consumer protection claims under Rule
9(b); plaintiffs didn’t disagree that Rule 9(b) applied.  The court found that the “how” and “why” of
the fraud was in part inadequately alleged. The straightforward theory of
deception was that MFSRPs were deceptive because consumers understand them to
represent former prices, but they don’t; that was adequately pleaded.  The “more nuanced” theory of deception was
that Coach designs outlet-only goods that appear similar to retail products and
tags the outlet-only products with MFSRPs that are similar to the prices of the
retail goods, causing consumers to believe they are buying products of similar
quality to the similar retail products. 
The court found that the complaint didn’t adequately allege the “how” or
“why” of this product-confusion theory. Plaintiffs didn’t allege that they
bought the Phoebe bag, or identify any Coach mainline products – or family of
products – to which plaintiffs believed the outlet goods that they purchased
were similar. To proceed on this theory, plaintiffs would have to identify the
retail goods that are deceptively similar to the outlet goods that the
Plaintiffs actually purchased.
Under New York’s consumer protection law, it isn’t enough to
allege that one wouldn’t have bought an item but for the appearance of a discount;
that’s not injury under New York law, or Massachusetts law.  It is sufficient injury under California law.  Assuming that New Hampshire followed the East
Coast model, it was still possible that the New Hampshire plaintiff could amend
her complaint to allege injury distinguishable from such “ephemeral” injury, if
the MFSRP’s caused her to believe that she was purchasing a product of higher
quality than she received.  It wasn’t
enough if she merely believed she was getting a bargain.
The New Hampshire plaintiff also plausibly alleged that the
MFSRPs were misleading. Coach argued that disclaimers in its stores explain
that the MFSRPs are intended to be indicators of “value.” “Whether, in the face
of such disclaimers, a reasonable consumer could nonetheless believe that the
MFSRPs are former prices is an issue of fact to be resolved at a later stage of
this litigation, as is the significance of Coach’s disclaimers.” Further, unlike
“compare at” advertising, MFSRPs – “Manufacturer’s Suggested Retail Prices” –
allude directly to a price for the item, “which makes it more plausible that a
reasonable consumer could believe that the MFSRP on the hangtag represents a
former price.”
The express warranty claim failed, because at best  the MFSRPs were “implicit” warranties of a
former price. They also weren’t warranties of product quality, because an
inference that the Coach Factory products are of better quality than they actually
are was “too vague and general to be actionable as an express warranty of
anything related to the actual goods.”

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Outlet sales of outlet-only clothes under brand name aren’t inherently deceptive

Rubenstein v. The Gap, Inc., — Cal.Rptr.3d —-, No. B272356,
2017 WL 3634212 (Ct. App. Aug. 24, 2017)
The court affirmed the trial court’s dismissal of a claim
against the Gap for selling lesser-quality products at its Gap and Banana
Republic factory/outlet stores that were never sold at its ordinary stores.  Rubenstein didn’t sufficiently allege a
misrepresentation or actionable omission. Rubenstein didn’t identify any advertising
or promotional materials or any Gap other statements that its factory store
clothing items “were previously for sale in traditional Gap stores or were of a
certain quality.” The mere use of its own brand names wasn’t deceptive just
because the apparel wasn’t of the quality that Rubenstein had come to expect. “As
a matter of law, Gap’s use of its own brand name labels on clothing that it
manufactures and sells at Gap-owned stores is not deceptive, regardless of the quality
of the merchandise or whether it was ever for sale at other Gap-owned stores.
Retailers may harm the value of their brands by selling inferior merchandise at
factory stores, but doing so does not constitute false advertising.”  [This line of cases directly addresses,
perhaps for the first time in litigation, the occasional debate in the
literature about whether trademark owners should be responsible to consumers
when they break their own promises about consistent quality that are
communicated by a trademark with secondary meaning.] 
Plaintiff alleged that “[r]easonable consumers believe
outlet stores sell products that were previously available for purchase at
retail stores,” but didn’t allege specific facts showing this to be true.
Moreover, a consumer for whom the
retail history of factory store items is material can ask Gap employees about
this. A reasonable consumer would also inspect the quality of factory store
clothing items before buying them and could return items after purchase if they
turn out to be unsatisfactory. In the end, the allegation that Gap is not
living up to the quality standards it has set for Gap and Banana Republic
brands fails to state a cause of action for a fraudulent business practice
under the UCL.
There was also no duty to disclose; the use of the brand
name didn’t constitute a partial representation “even if the products are
alleged to be inferior to other brand name products.”
Nor was selling nonidentical brand-name clothing in a
factory store “unfair.”  In particular, “[t]he
injury alleged is not substantial because consumers are getting Gap and Banana
Republic brand name items for low prices.” 
This interestingly suggests that there’s no quality differential to the
extent that consumers are just buying the brand name, not the clothes.  Plus, consumers could have asked sales
associates about the items’ history and examined their quality before purchase.

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name alone doesn’t ID average people in internet search ROP case, court rules

Dobrowolski v. Intelius, Inc., No. 17 CV 1406, 2017 WL
3720170 (N.D. Ill. Aug. 29, 2017)
Defendants sell online reports on people using information
compiled from public records and other sources. 
When a consumer uses a search engine to search a person’s first and last
names, dynamic keyword ads appear, with the first and last name automatically
plugged into an otherwise generic ad.  The
ads “give the appearance that the reports contain valuable information about
the searched-for person, such as arrest records, background check, phone
number, and address.” Plaintiffs sued Intelius and other entities under the
Illinois Right of Publicity Act for this advertising; Intelius got out for lack
of personal jurisdiction but the others got out on a motion to dismiss on the
The Illinois Right of Publicity Act prohibits the use of “an
individual’s identity for commercial purposes during the individual’s lifetime
without having obtained previous written consent from the appropriate person.” IRPA
defines “identity” as “any attribute of an individual that serves to identify
that individual to an ordinary, reasonable viewer or listener, including but
not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v)
likeness, or (vi) voice.”  Defendants
argued that they didn’t use plaintiffs’ “identities” because the ads only
reflect the coincidental result of a third-party’s internet search for their
names, without any additional information to identify one “Anna Dobrowolski” or
“Nicole Vinci” over another. Even though IRPA specifically uses “name,” that’s
in the context of identifying a particular individual; a name alone isn’t
necessarily sufficient to identify an individual, since many people have the
same name. The use at issue must serve “to identify that individual to a
reasonable audience.”
Plaintiffs argued that defendants designed their ads to make
a person searching the internet for “Nicole Vinci” or “Anna Dobrowolski”
believe that the defendants had located the plaintiffs and had information on
them. But that wasn’t enough.  Though a
plaintiff need not allege facts sufficient to show that she was identified to
the exclusion of all other persons bearing their name or likeness, she must
still allege facts to plausibly infer that she was identified to a reasonable
audience by the defendant’s use. Without any additional context, “Anna
Dobrowolski” or “Nicole Vinci” didn’t identify the plaintiffs. The complaints
do not suggest that the ads identify the plaintiffs in any manner except for
name. The fact that the defendants benefited from designing their ads in the
way they did still didn’t mean they identified the plaintiffs in particular.
To deal with a possible amended complaint, the court also
addressed defendants’ arguments that because the names “Anna Dobrowolski” and
“Nicole Vinci” were automatically populated into defendants’ generic ads as the
result of a third-party’s search, the plaintiffs could not show that the
defendants intended to appropriate
the names “Anna Dobrowolski” and “Nicole Vinci.” But the requisite intent is
simply “to use the material about the plaintiff for trade purposes”; the
defendants’ intent to use full names in their otherwise generic ads was enough.
Defendants also argued that a ROP claim required the
plaintiff’s identity to have intrinsic or commercial value before the
defendant’s use. Though some pre-IRPA case law required this, IRPA did not—it’s
about each individual’s “right to control and to choose whether and how to use
[their] identity for commercial purposes” and isn’t limited to protecting
celebrities or public figures.  [Query,
as usual, how this is at all compatible with the First Amendment in the absence
of falsity/misleadingness.]

Nor did an IRPA claim require an apparent endorsement. Even
if ads stating “Anna Dobrowolski Located” or “We Found Nicole Vinci” don’t
suggest to a reasonable viewer that Anna Dobrowolski or Nicole Vinci endorse
defendants’ products, IRPA doesn’t require that the defendant’s commercial
purpose be an apparent endorsement. “IRPA’s definition of ‘commercial purpose’
is broad, and the act contains no endorsement requirement. Neither does IRPA
have a falsity requirement.”  Which is
why it’s unconstitutional, especially as applied to services like this one.

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