Yeager v. Cingular Wireless LLC

• Decision Date: 12 June 2008
• Docket Number: No. CIV. S-07-2517 FCD GGH.,CIV. S-07-2517 FCD GGH.
• Citation: 627 F.Supp.2d 1170
• Court: U.S. District Court — Eastern District of California
• Parties: General Charles E. "Chuck" YEAGER (Ret.), Plaintiff, v. CINGULAR WIRELESS LLC; Bellsouth; SBC Communications; American Telephone & Telegraph; and Does 1 to 200, inclusive, Defendants.

627 F.Supp.2d 1170

General Charles E. "Chuck" YEAGER (Ret.), Plaintiff, v. CINGULAR WIRELESS LLC; Bellsouth; SBC Communications; American Telephone & Telegraph; and Does 1 to 200, inclusive, Defendants.

No. CIV. S-07-2517 FCD GGH.

United States District Court, E.D. California.

June 12, 2008.

COPYRIGHT MATERIAL OMITTED

Robert G. Eliason, Wild, Carter & Tipton, Fresno, CA, for Plaintiff.

Andrew W. Stroud, Mennemeier Glassman and Stroud, Sacramento, CA, O. Yale Lewis-Phv, Jr., Whitney I. Furman-Phv, Hendricks and Lewis, Seattle, WA, for Defendants.

MEMORANDUM AND ORDER

FRANK C. DAMRELL, JR., District Judge.

This matter is before the court on defendant AT & T Mobility LLC's¹ ("defendant" or "AT & T") motion to dismiss plaintiff General Charles E. Yeager's ("plaintiff" or "Yeager") complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff opposes the motions. For the reasons set forth below,² defendant's motion is DENIED.

BACKGROUND

Plaintiff Yeager is a retired General Officer of the United States Air Force. (Compl., filed Nov. 21, 2007, ¶ 5.) He served in the Air Force during World War II as a fighter pilot, flying P-51 Mustangs. (Id.) During one mission, Yeager was shot down, evaded capture, and aided local resistance forces. (Id.) He escaped from behind enemy lines to American control and resumed his duties. (Id.) He is one of the few American fighter pilots to become an "ace in a day," by downing five enemy fighters in one mission. (Id.)

After World War II, Yeager became a test pilot. (Id. ¶ 6.) In that capacity, he became the first person to break the speed of sound, known as Mach 1. (Id.) Shortly thereafter, he became the first person to exceed 2.4 times the speed of sound, known as Mach 2. (Id.) He subsequently set and/or broke additional aviation and speed records. (Id.) He has been featured, recognized, and honored for his accomplishments by persons and entities such as Marshall University, the State of West Virginia, President Ford, the National Aviation Hall of Fame, President Reagan, and the Aerospace Walk of Honor. (Id.)

Yeager has utilized his name, identity, and image. (Id. ¶ 8.) He served as a spokesman for AC Delco Corp., which saw its sales increase as a result of the use of his name, likeness, identity, and endorsement. (Id.) He has spoken to various groups, organizations, and committees. (Id.) He has been featured on the cover of numerous magazines as a result of his actions, status, and historical activities. (Id.) Yeager charges and receives a fee for the commercial use of his name, image, and/or identity, and charges for any endorsements of products or companies. (Id.)

On approximately May 17, 2006, defendant³ issued an advertising/promotional article (the "publication") styled as a "Press Release." (Id. ¶ 14.) The publication was intended to highlight the reliability, durability, and security of defendant's cellular communications network. (Id.) It focused upon defendant's launching of a new service designed to respond to disaster or emergencies to ensure the continued provision of cellular service. (Id.) Specifically, the publication provides, in relevant part:

Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.

(Id. ¶ 15; Ex. 1 to Compl.) Plaintiff alleges that by utilizing his name and identity in the article, defendant impaired his ability to negotiate representation agreements with other cellular and wireless service providers. (Id. ¶ 18.)

Plaintiff brings claims for (1) violation of the Lanham Act, 15 U.S.C. § 1125(a); (2) violation of California common law right to privacy/right to control publicity and likeness; (3) violation of California Civil Code § 3344; (4) unjust enrichment; (5) violation of California Business and Professions Code § 17200; and (6) violation of California False Advertising Act. Defendant moves to dismiss all of plaintiff's claims.

STANDARD

On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. 6, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.

Nevertheless, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated Gen. Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n. 2 (9th Cir.1986).

Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Only where a plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. "[A] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).

ANALYSIS

Defendant moves to dismiss plaintiff's claims on the basis that (1) the reference to plaintiff's name is protected by the First Amendment; (2) plaintiff's trademark claims fail as a matter of law; (3) the reference to plaintiff's name was incidental and constituted permissible fair use; and (4) all his remaining claims are substantially congruent and thus, also fail as a matter of law.

A. First Amendment

Defendant first contends that the use of plaintiff's name in the publication is protected by the First Amendment because the material was a "news release" and addresses a matter of public interest. Plaintiff contends that the publication was not news, but commercial speech that sought to capitalize upon plaintiff's popularity, recognition, and appeal.

The use of a plaintiff's identity is not actionable where the publication relates to matters of the public interest, "which rests on the right of the public to know and the freedom of the press to tell it." Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir.2001) (quoting Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 793, 40 Cal.Rptr.2d 639 (1995)). "The First Amendment defense extends `to almost all reporting of recent events,' as well as to publications about `people who, by their accomplishments, mode of living, professional standing, or calling, create a legitimate and widespread attention to their activities.'" Id. (quoting Eastwood v. Superior Court, 149 Cal.App.3d 409, 422, 198 Cal.Rptr. 342 (1983)). However, under both Ninth Circuit and California law, commercial speech is actionable when a "plaintiff's identity is used, without consent, to promote an unrelated product" of a defendant. Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400, 413, 114 Cal.Rptr.2d 307 (2001) (citing Newcombe v. Adolf Coors Co., 157 F.3d 686, 691-94 (9th Cir.1998); Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 416 (9th Cir.1996); Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1097-98 (9th Cir.1992); White v. Samsung Electronics Am., Inc., 971 F.2d 1395, 1396 (9th Cir.1992); Midler v. Ford Motor Co., 849 F.2d 460, 461 (9th Cir.1988)). Where the use of a plaintiff's identity in an advertisement is merely illustrative of a commercial theme or product and does not contribute significantly to a matter of public interest, a defendant cannot avail itself of the First Amendment defense. Downing, 265 F.3d at 1002-03 (holding that the First Amendment defense was inapplicable where the use of plaintiff's photograph was used "essentially as window-dressing to advance the catalog's" theme).

In this case, plaintiff alleges that defendant's publication was an "advertising/promotional article styled as a `Press Release" and was intended to highlight the reliability, durability, and security of defendant's cellular communications network. (Compl. ¶ 14.) On a motion to dismiss, the court must take as true plaintiff's allegation that the article, although titled as a "news release," was really an advertisement. Viewing the allegations in the light most favorable to the plaintiff and drawing all reasonable inferences therefrom, the complaint sufficiently alleges that defendant used plaintiff's name and reputation for its own advantage to promote an unrelated product or theme. These allegations are not contradicted on their face by the text of the publication attached to the complaint.⁴

Defendant argues in both its moving papers and reply brief that the publication is a news release on emergency preparedness and thus, asks the court to make a determination that it is entitled to First Amendment protection as a matter of law. At this stage of the litigation, where the court may only look at the allegations in the complaint and must view those allegations in the light most favorable to the plaintiff, the court cannot make such a determination. Nor has defendant cited the court any case where a court has made such a determination on a motion to dismiss. Therefore, in light of the procedural posture of...