Giving a Footbag Record Holder the Boot

April 11, 2018

Introduction

Johannes T. “Ted” Martin is the Guinness World Record holder for “Open Singles Footbag Consecutive.” In more common parlance, he holds the hacky-sack world record (hacky-sack  is a brand of footbag). Wendy’s International (“Wendy’s”) is a fast food hamburger franchise. Ted, representing himself in court without an attorney, sued Wendy’s and Guinness World Records Limited (“Guinness”) for using his name and associated record to sell Kids’ Meals without his permission. Ted’s claims were dismissed on April 28th, 2017 by Judge Jorge Alonso of the United States District Court, Northern District of Illinois. This dismissal was affirmed by the 7th Circuit on March 9th, 2018.

Background

Ted Martin set a record of 63,326 consecutive kicks in 1997. Compl. at 1-2. He completed this feat in just under 9 hours—a solid day’s work. Ted alleges in his complaint that this record is considered “The Footbag World Record” because it most closely matches the most commonly understood objective of the game. Am. Compl. at 1. However, there are other footbag world records including a record for the largest number of people playing together in a circle, which was 946. Compl. at 3–4, Ex. A.

Wendy’s and Guinness teamed up to run a promotion from August 2013 to September 2013 for Wendy’s Kids’ Meals. Id. Each kids’ meal would come with a toy—there were six—that was associated with a Guinness World Record. Id. One of the toys was a footbag. This footbag was branded with “Guinness World Records,” and came with an instructional booklet which read, inter alia: “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., Exs. B, D, E.

Ted was very upset. He had personally made the footbag he’d used to set the record. Am. Compl. at 13. Furthermore, he was in the process of designing, manufacturing, and distributing an updated footbag of his own. His complaint and amended complaint, taken together, alleged one claim under the Illinois Right of Publicity Act for the use of his name without permission, and two claims under the Lanham Act on the grounds that the defendants’ claims were likely to cause confusion among customers and would hurt his ability to commercially exploit his own footbag. It is interesting to note that Ted’s original and amended complaints were read together in this case, which was due to his position as a pro se plaintiff.

The Law

The Illinois Right of Publicity Act is codified at Illinois Statutes chapter 765 Act 1075. Ted points to 1075/5, which reads:

As used in this Act: ‘Commercial purpose’ means the public use or holding out of an individual’s identity on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising. ‘Identity’ means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to name, . . .

Ted argues that Wendy’s and Guinness have clearly infringed his rights under this Act because they used his name in connection with either a sale of a product or, at the very least, the advertising or promotion of a product.

On the other hand, the Seventh Circuit looked to 1075/35, which reads: “(b) This Act does not apply to the following: . . . (3) use of an individual’s name in truthfully identifying the person as the author of a particular work or program or the performer in a particular performance[.]” Ted argued that this exception does not apply because, although he agreed to participate in the original performance of the World Record feat, he never agreed to perform in the joint Guinness/Wendy’s kids’ meal promotion. The court disagreed, writing: “Section 105/35(b)(3) allows anyone to identify truthfully the performer of a particular performance. And that is what the defendants did.”

Ted’s remaining two claims are under section 43(a) of the federal Lanham Act, which is codified within the United States Code at 15 U.S.C.A. § 1125(a). The first claim falls under 1125(a)(1)(A), which creates civil liability for false endorsement. The second claim falls under 1125(a)(1(B), which creates a civil action for false labeling.

As to the false endorsement claim, the Seventh Circuit opined that the “Guinness World Record” language on the kids’ meal footbag would prompt a reasonable consumer to believe that it was Guinness, and not Ted, that was endorsing or associated with the footbag. More, the use of Ted’s name on the instruction booklet, specifically, identified him as the owner of the record rather than as the endorser of the product. Id.

Moving on to the false labeling claim, the Seventh Circuit found that the labeling of the footbag as “record breaking” was mere puffery, or “meaningless statements” that “no one is or could be fooled by.” Id.  In doing so, the Seventh Circuit pointed to other language in the kids’ meal materials that discussed family play, bonding, and healthy competition. Within this context, the court states, “no reasonable consumer would believe that free toys accompanying kids’ meals . . . were the same types of items used to set world records.” Id.

Conclusion

Ted tried to make much of the fact that his participation in a Guinness World Record did not mean he automatically consented to participating in Guinness promotions, and that it did not authorize Guinness to consent to promotions on his behalf. Am. Compl. at 9–11. But, the court never addressed these consent or agency issues. Instead, as noted above, they kicked the Illinois Right of Publicity claim on a statutory exception for truthful information concerning a performance and the two federal Lanham Act claims by reasoning from the point of view of a “reasonable consumer” who had bought a kids’ meal.

Ted has held his Guinness World Record since 1997. He relied on cases where his heroes had won on similar claims. Unfortunately, the take-away here may be that a pro se Guinness World Record holder is no match for Kareem Abdul-Jabbar or Michael Jordan.

Additional Links:

Lower Court Docket:

Martin v. Wendy’s International Inc. et al.

N.D.Ill. | August 11, 2015 | 1:15CV06998

Appellate Court Docket:

Johannes Martin v. Wendy’s International, Inc., et al.

7th Cir. | May 17, 2017 | 17-2043

Image Source: REUTERS/Tobias Schwarz

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