Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: ‘Hacky sack’ record holder’s 5-hour ENERGY false ad claim kicked out, (Feb 2, 2016)

By Greg Hammond, J.D.

The world record holder for men’s singles footbag or “hacky sack” failed to state a claim for false advertising under the Lanham Act with regard to an energy supplement commercial that depicted an actor claiming that he mastered origami while “beating the record for Hacky Sack.” In dismissing the record holder’s claims with prejudice, the federal district court in Chicago concluded that although the hacky sack statement was literally false—in that the statement was not intended to be truthful—the record holder could not plausibly allege consumer confusion (Martin v. Living Essentials, LLC, February 1, 2016, Tharp, J.).

The 5-Hour ENERGY commercial at issue depicted an actor who claimed that “in the last 5 hours” he disproved the theory of relativity; swam the English Channel and back; found Bigfoot; and mastered origami while beating “the record for Hacky Sack,” all because he took a 5-Hour ENERGY shot. The record holder alleged that the statement the actor beat “the record for Hacky Sack” was a false representation of fact, in violation of the Lanham Act and Illinois Right to Publicity Act. Living Essentials, LLC—the producer of 5-Hour ENERGY—moved to dismiss.

Consumer confusion. The court first determined that the hacky sack record breaking claim was literally false, reasoning that “there is no interpretation that renders the claim about breaking the hacky sack record truthful—the statement wasn’t intended to be truthful because the Commercial is a farce.” Nevertheless, the commercial fell into the category of farcical exaggerations that carry no risk of deceiving customers, the court decided. Because the record holder could not plausibly allege consumer confusion that had injured him, given the farcical nature of the commercial, the Lanham Act claim was dismissed with prejudice.

The court also dismissed the Illinois Right to Publicity Act claim as time-barred.

The case is No. 15 C -1647.

Attorneys: Johannes T. Martin, pro se. David C. Van Dyke (Howard & Howard) for Living Essentials, LLC.

Companies: Living Essentials, LLC

Cases: Advertising IllinoisNews