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Martin v. Wendy's International, Inc.

United States District Court, N.D. Illinois, Eastern Division

April 28, 2017



          HON. JORGE L. ALONSO United States District Judge.

         Plaintiff Johannes “Ted” Martin claims that defendants Wendy's International, Inc. (“Wendy's”) and Guinness World Records Limited (“Guinness”) violated Section 43(a) of the Lanham Act and his right of publicity under Illinois law by using his identity in a 2013 promotion. Defendants have jointly moved to dismiss plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion is granted.


         In an earlier order in this case, the Court related the facts underlying this dispute as follows:

[P]laintiff holds the world record for consecutive kicks of a footbag. A footbag is a popular toy also known by a common brand name, Hacky Sack. In June of 1997, plaintiff set the world record by kicking a footbag into the air 63, 326 consecutive times without letting it hit the ground. (Compl. at 1-2.)
Over a six-week period in August and September 2013, Wendy's and Guinness ran a promotion in which every Kid's Meal sold at Wendy's restaurants included one of six Guinness-themed toys. (Id. at 3-4, Ex. A.) According to an announcement posted on the Guinness website, which plaintiff printed and attached to his complaint, Guinness “teamed up with Wendy's” “to add a little friendly record-breaking competition to family dining” by offering “record-breaking toys, ” including a trick footbag (“Once the neighborhood gets a hold of the skills on this footbag, it's only a matter of time before the record of 946 people playing in a circle at once gets taken down.”) (Id., Ex. A.) The announcement stated that “each toy provides fun challenges and a chance for parents and kids to outdo each other for the title of family's best. Tallest, smallest, fastest, farthest-each Kid's Meal will allow parents and kids to keep the fun going!” (Id.) Further, it stated that each Wendy's Kid's Meal would come with a link to a downloadable eBook, which provided “an exclusive guide to records that families can try to break, so mom or dad or brother or sister can set the family record. It's also packed with many fantastic records that can be broken in just a minute . . . .” (Id.)
The words “Guinness World Records” were written on the footbag toys and on their packaging. (Id., Exs. B, D.) Other printed materials related to the promotion, including an in-store display and the bag in which the Kid's Meals were sold, bore the Guinness World Records logo just beneath the heading, “Kids vs. Parents.” (Id., Exs. B-D.) The text on both sides of the Kid's Meal bag referred to the promotion's six “record-breaking toys.” (Id., Ex. C.) An instructional card included with the trick footbag toy showed a picture of two people playing footbag (plaintiff concedes that he is not pictured) and listed three records below the picture:
1. The most kicks of a footbag in five minutes is 1, 019.
2. The most people playing footbag in a circle at one time is 946.
3. The most consecutive footbag kicks in 10 minutes by a pair is 1, 415.
(Id., Ex. E.) Directly under the heading, “Instructions, ” the card read as follows: “How many times in a row can you kick this footbag without it hitting the ground? Back in 1997, Ted Martin made his world record of 63, 326 kicks in a little less than nine hours!” (Id.) The card then went on to provide instructions on how to use the footbag. (Id.) It concludes with the question, “What kind of family record can you set?” (Id.)

(Mem. Op. & Order, at 1-3, May 2, 2016, ECF No. 26, available at Martin v. Wendy's Int'l, Inc., 183 F.Supp.3d 925, 927-28 (N.D. Ill. 2016) (the “May 2, 2016 Order”)). According to plaintiff, defendants violated his rights under the Illinois Right of Publicity Act (“IRPA”), 765 ILCS 1075/10, and Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), by printing “Guinness World Records” on each footbag, using the term “record-breaking toys” in promotional materials, and referring to plaintiff by name in conjunction with his consecutive-footbag-kicks world record on the instruction card included with each footbag.

         Defendants moved to dismiss for failure to state a claim. In its May 2, 2016 Order, the Court granted defendants' motion and gave plaintiff leave to amend within 21 days. Plaintiff has filed an amended complaint based on essentially the same factual allegations. Defendants again move to dismiss.


         “A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipsis omitted).[1]

         Under federal notice-pleading standards, a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. Stated differently, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “In reviewing the sufficiency of a complaint under the plausibility standard, [courts must] accept the well-pleaded facts in the complaint as true, but [they] ‘need[] not accept as true legal conclusions, or ...

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