Lewis v. Marriott Int’l, Inc., --- F.Supp.2d ----, 2007 WL 4442785 (E.D. Pa.)
The Third Circuit is presently considering how to analyze false celebrity endorsement claims under the Lanham Act – the standard multifactor infringement test doesn’t work well in analyzing endorsement, but §43(a)(1)(B) false advertising analysis might not be right either. This case raises the issue in passing, but unsurprisingly leaves much undecided.
Lewis was the executive chef at the Downtown Courtyard by Marriott in Philadelphia until 2005, when he left to start his own business. After his departure, Marriott allegedly continued to use his name in materials used to sell wedding packages. He alleged false advertising in violation of the Lanham Act, violation of his Pennsylvania statutory right of publicity, and common-law claims for his right of publicity and right of privacy.
The court easily found that the “in commerce” requirement was satisfied since out-of-staters might plan a wedding at a major hotel like the Marriott. Marriott also argued that an essential element of the claim was that Lewis’s name is a valid mark, and that this was not properly alleged. Though the claim was styled as one for false advertising, the court treated it as a trademark issue, requiring a showing of secondary meaning before a name could be protectable. The court found the complaint sufficient, because it alleged that Lewis was well known as a chef, caterer, and event planner in the Philadelphia area, and added other specifics.
For the same reason, the court refused to dismiss the statutory claim, which covers natural persons whose names or likenesses have commercial value and are used for “any commercial or advertising purpose” without written consent – the complaint properly alleged that Lewis’s name had commercial value. As for the common-law publicity claim, the court opined that commercial value might not even be an element; commercial benefit to the defendant would suffice. Marriott argued that the common-law privacy claim based on misappropriation had been superseded by statute, as held in Facenda v. NFL Films, Inc., 488 F.Supp.2d 491, 513-14 (E.D. Pa. 2007). The court, however, disagreed, because the statute said nothing expressly about replacing common-law claims. Thus all Lewis’s counts survived the motion to dismiss.