Antitrust Law Daily Wrap Up, ADVERTISING—M.D. Fla.: Claims arising from vacation club’s use of individuals’ images survive dismissal, (May 4, 2016)

By Michael Menzhuber, J.D., LL.M.

Individuals’ claims that a vacation club’s unauthorized use of their images violated two Florida statutes, as well as the false advertising prohibition under the Lanham Act, were entitled to proceed, according to the federal district court in Tampa. The court permitted the plaintiffs to maintain their unjust enrichment claim as an alternative to their legal claims but dismissed their claim for negligence (Edmondson v. Caliente Resorts, LLC, May 3, 2016, Merryday, S.).

Jaime Faith Edmondson and 15 other individuals sued Caliente Vacation Club, LLC, a clothing optional lifestyle resort, for the unauthorized use of each plaintiff’s image. Caliente responded by filing a motion to dismiss.

False advertising. The plaintiffs alleged that the defendant resort’s unauthorized use and alteration of each plaintiff’s image constituted false advertising by implying that each plaintiff was affiliated with the resort and caused irreparable harm to the plaintiffs’ reputations by attributing to each plaintiff a “swinger” lifestyle and activities at the resort. Caliente’s argument that the plaintiffs failed to state a claim because an image of a plaintiff failed to qualify as a “protectable mark” under the Lanham Act was rejected. The court determined that the plaintiffs’ claim alleged false advertising, not trademark infringement, and a false advertising claim did not require that their images qualify as a “protectable mark.” Thus, the defendants’ challenge was to a claim that the plaintiffs did not advance.

Right of publicity. However, in dismissing the plaintiffs’ right of publicity claim, the court found that the plaintiffs failed to explain the source of Caliente’s duty with respect to dealing with the plaintiffs’ images and use of the images. Under Florida law, no person shall publish, print, display, or otherwise publicly use for any commercial or advertising purpose the name, photograph, or other likeness of any natural person without the express written or oral consent to such use.

In this case, the court determined that the plaintiffs’ allegations that Caliente’s conduct amounted to negligence per se were insufficient because (1) they failed to distinguish between a particular class of persons that the statute aimed to protect and a description of the victims that the statute aimed to proscribe; (2) the plaintiffs’ claim of violation of a statute was only evidence that Caliente may have been negligent and did not establish that it owed the plaintiffs a duty; and (3) the plaintiffs failed to explain how Caliente’s conduct created a “foreseeable zone of risk” of injury for purposes of creating a common law duty.

The case is No. 8:15-cv-2672-T-23TBM.

Attorneys: Christopher George Oprison (Akerman LLP) for Jaime Faith Edmondson. Nicole Soto (Burr & Forman, LLP) and Shannon Patricia McKenna (Conroy Simberg) for Caliente Resorts, LLC d/b/a Caliente Resort.

Companies: Caliente Resorts, LLC

Cases: Advertising Privacy FloridaNews