Cornette v. Graver
| Decision Date | 20 July 2020 |
| Docket Number | Case No. 3:19-cv-219 |
| Citation | 473 F.Supp.3d 437 |
| Parties | James "Jim" CORNETTE, Plaintiff, v. Brandon GRAVER, William J. Molnar, Jr, individually and d/b/a/ the Indy Connection, and the Indy Connection, Inc., Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
Robert Dunlap, Robert Dunlap Esq PLLC, Stephen P. New, Pro Hac Vice, New, Taylor & Associates, Beckley, WV, for Plaintiff.
Max Petrunya, Max Petrunya, P.C., Pittsburgh, PA, for Defendants.
James "Jim" Cornette ("Cornette"), a professional wrestling commentator and personality, brought this trademark action under the Lanham Act and Pennsylvania state law against Defendants Brandon Graver ("Graver"), William J. Molnar ("Molnar"), and The Indy Connection, Inc.1 (the "The Indy Connection") (collectively, "G-Raver"). Cornette alleges that G-Raver has infringed his trademark rights and right of publicity by selling disparaging t-shirts bearing his name and likeness (the "Shirts"). Cornette moved for a Temporary Restraining Order,2 asking this Court to enjoin G-Raver from selling and promoting the Shirts. (ECF No. 11.) Cornette argues that he is entitled to injunctive relief because he is likely to succeed on the merits of his claim, will suffer irreparable harm in the absence of injunctive relief, and the balance of the equities and public interest favor an injunction. (see generally id. ) The Motion is fully briefed (ECF Nos. 11, 12, 27, 57, 59) and ripe for disposition.
For the following reasons, the Court DENIES Cornette's Motion and holds that: (1) Cornette has failed to establish a likelihood of success on his trademark claims because G-Raver did not engage in commercial speech subject to the Lanham Act; (2) even if G-Raver did engage in commercial speech subject to the Lanham Act, Cornette has not established a likelihood of success on his trademark claims because there is no likelihood of confusion between Cornette's merchandise and the Shirts, Cornette has not shown that his name is sufficiently famous as a mark to be protected from dilution, Cornette has shown no likelihood of dilution, Cornette has failed to show that G-Raver acted in bad faith in registering and using websites that incorporate his name, and because his state trademark claims depend on his Lanham Act claims, has failed to demonstrate a likelihood of success on that claim also; (3) both the First Amendment and Pennsylvania's right of publicity statute protect the Shirts as expressive conduct; (4) Cornette has failed to show that he is likely to suffer irreparable harm in the absence of injunctive relief; (5) the balance of equities disfavors an injunction; and (6) an injunction is not in the public interest.
This Court has subject-matter jurisdiction over Cornette's Lanham Act claims because they arise under federal law. 28 U.S.C. §§ 1331, 1338. The Court has supplemental jurisdiction over Cornette's remaining state law claims because they form part of the same case or controversy as his federal claims. 28 U.S.C. § 1367. This Court also has subject matter jurisdiction over the state law claims because the parties are citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332.
Venue is proper because a substantial part of the events giving rise to this action occurred in the Western District of Pennsylvania. 28 U.S.C. § 1391.
This lawsuit centers around various personalities in, and types of, professional wrestling. The heart of the case involves the sale by G-Raver of the Shirts depicting Cornette's name and likeness in a manner that allegedly interferes with Cornette's trademarks and right of publicity.
Cornette, a Kentucky resident, is a lifelong fan of professional wrestling who has worked in the field since he was young. (Tr. at 124:12–125:8.) Cornette is a celebrity in the field of professional wrestling. (Id. at 143:24–144:1.) Cornette began working in professional wrestling as a ringside photographer, then began working for wrestling magazines, and started managing wrestling teams in 1982. (Id. at 123:1–8.) Cornette also spent time as a wrestling personality and commentator on the television program World Championship Wrestling. (Id. at 126:6–13.) Cornette has also owned and operated his own wrestling companies, and he has worked in high-level positions at several other wrestling companies, including World Wrestling Entertainment, Inc., and the World Wrestling Federation, Inc., (Id. at 125:9–18; 126:14–24; 156:16–25; ECF No. 11-1 ¶¶ 7–8.) Cornette has also been extensively involved in developing professional wrestling talent. (Tr. at 126:14–128:5.)
As a result of his extensive experience in the professional wrestling arena, Cornette has formed opinions about professional wrestling and has also developed a professional persona. (Id. at 144:15–20; ECF No. 11-1 ¶¶ 14, 17–18.) Cornette currently hosts two podcasts, "The Jim Cornette Experience" and "Jim Cornette's Drive-Thru," which both focus on wrestling, and Cornette uses these podcasts—along with his Twitter account—to offer opinions on various topics in the world of professional wrestling. (Tr. at 155:3–11; ECF No. 11-1 ¶ 15.) These podcasts follow a format very similar to that of talk radio: fans write to Cornette through email, or contact him via Twitter, and ask him questions or ask for his opinions on certain topics. (Tr. at 143:13–19.) Cornette's Twitter account is a self-described part of his professional "gimmick."4 (Id. at 166:24–167:14.)
Listeners download Cornette's podcasts approximately 1.7 million times per month, and he has approximately 160,000 followers on Twitter. (Id. at 134:1–6.) Cornette also has a YouTube channel that provides viewers with videos made from segments cut from his podcast episodes; between 100,000 and 125,000 viewers watch his podcast videos on YouTube each month. (Id. ) Cornette's YouTube videos are uniquely identifiable from thumbnail images that depict people he discusses in each segment. (Id. at 157:23–158:1.) Cornette does not ask for permission from the people his thumbnails depict before he uses each thumbnail. (Id. at 158:2–9.)
Recently, Cornette has reduced his work "on-the-road," and focused more on hosting his podcasts, selling merchandise like t-shirts, and operating a website as his primary profession. (Id. at 128:6–15.) Cornette sells his merchandise through Cornette's Collectibles, LLC, via his website on www.jimcornette.com, a website designed exclusively for him; these sales ebb and flow throughout the year—they are not consistent year-round. (Id. at 128:24–129:2; 140:17–24; 142:11–143:9.) Sales of Cornette's t-shirts in 2019 were approximately $40,000, accounting for approximately 15 percent of revenue from Cornette's merchandise sales. (Id. at 128:16–23.) Cornette's t-shirts reflect his particular affinity for "colorful" language and his fans and listeners expect him to utilize such language in his podcasts; for example, Cornette has sold a t-shirt for four or five years with a phrase that Cornette considers to be a catchphrase or personal motto: "Thank you, Fuck you, Bye." (Id. at 112:1–13; 129:6–13; 133:17–25.)
As a regular element of Cornette's podcasts and social media presence, Cornette's fans send him wrestling videos where wrestlers "do stupid things," or where something goes wrong in a wrestling move. (Id. at 129:19–130:3.) Cornette comments on these videos and the people shown in the videos. (Id. ) Cornette's comments on one such video gave rise to the dispute at the center of this case. (Id. at 84:3–7.)
Graver, a professional wrestler and tattoo artist, who wrestles under the ring name5 of "G-Raver," resides in Lancaster, Pennsylvania; he has been wrestling professionally for 13 years. (Id. at 182:11–15; 220:22–221:1.) Graver trained as a professional wrestler at Chikara Wrestle Factory in Philadelphia, Pennsylvania and has wrestled at professional wrestling events in the United States, Mexico, and Japan. (Tr. at 183:2–18; 186:4–187:8.) For the last five years or so, Graver has engaged in a type of wrestling known as "deathmatch" wrestling. (Id. at 184:13–24; 185:16–18.) In a deathmatch contest, multiple wrestlers, such as Graver, compete by hitting each other with improvised weapons, such as light tubes, barbed wire, thumbtacks, panes of glass, and weed whackers, among other things; Graver's signature weapons are tattoo needles. (Id. at 184:24–185:8; 202:24–203:6.) As a result of competing with these improvised weapons, deathmatch wrestlers are often injured and bloodied by the end of a match. (See id. )
Cornette is and has been a vocal opponent of deathmatch wrestling because fans of deathmatch wrestling may attempt to replicate the wrestling moves and may suffer serious injury in so doing. (Id. at 155:3–11; 168:21–23.) Cornette's informal fan club—he refers to it as the "Cult of Cornette"—is a group of people who generally are fans of Cornette, agree with his opinions, and are the targets of Cornette's merchandise marketing. (Id. at 168:9–23.) The Cult of Cornette also generally opposes deathmatch wrestling. (Id. at 169:21–24.)
On August 31, 2019, a wrestling fan tweeted6 Cornette a video of a recent deathmatch involving Graver. (ECF No. 11-1 ¶¶ 23–25; Tr. at 168:24–169:2.) In the video, Graver suffered a serious injury to his arm from a broken fluorescent light tube when the ladder he was on collapsed. (Tr. at 191:9–192:3.) Graver lacerated an artery in his arm and nearly bled to death as a result of his injury. (Id. at 191:20–192:3; 195:3–196:22.) Cornette re-tweeted the video of Graver's injury, adding that Graver had taken "a nasty little nick" from the light, and that "if fans were lucky[, the organizers] probably stopped the show so everyone could watch [Graver] bleed out."...
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