IP Law Daily, PUBLICITY RIGHTS NEWS—W.D. Ark.: False advertising, publicity rights claims survive motion to dismiss in law firm confusion dispute, (Nov 22, 2024)

By Kevin M. Finson

False advertising claims arising from confusion between two law firms survived a motion to dismiss because they plausibly alleged harm arising from a false statement.

A lawyer stated claims for false advertising and violation of state statutory rights of publicity, the U.S. District Court in Fayetteville, Arkansas, has held. The attorney had received numerous communications from unhappy clients of another firm which was using a similar name (Joel E. Cape, PLC v. Cape Law PC, No. 5:24-cv-05104-TLB (W.D. Ark. Nov. 20, 2024)).

Joel E. Cape was an attorney in Arkansas who operated a law firm since 2013 under the names JOEL E. CAPE, PLC and CAPE LAW FIRM, PLC, working in the field of agriculture law. In mid-2022 an entity was created in Arizona under the name CAPE LAW PC (CLP), by Akiki Endo, which began advertising legal services online, including an offer to open cases instantaneously by submitting credit card information. Joel Cape and his firm soon began receiving complaints from clients of CLP who believed he represented them as well as from opposing parties who were unable to contact CLP due to CLP’s failure to include accurate contact information in its letters, as well as negative Google review and Better Business Bureau complaints from CLP’s customers who mistakenly believed Cape was responsible for their cases.

Cape brought suit against CLP and Endo for false association and unfair competition under the Lanham Act, unfair competition and infringement under Arkansas law, false advertising under the Lanham Act, violation of the Arkansas’s statutory right of publicity, and negligence under Arkansas law. Both defendants moved to dismiss for lack of jurisdiction, improper venue, and failure to state a claim, but after some stipulation and admissions the only matters remaining before the court were the failure to state a claim arguments as to CLP.

False advertising. CLP argued that Joel Cape failed to plead proximate causation as to any false advertising, and instead that any injury suffered by Cape was the result of the alleged trademark infringement and resulting confusion, not of false advertising. The court found it had been plausibly alleged that CLP made false statements about its services and abilities and that these false statements caused harm to Cape, so the claim was properly pleaded.

Right of publicity. CLP argued that it did not use Cape’s name but simply the word “cape” without intending any connection to Joel Cape or his firm. The court found that it was plausibly alleged CLP had connected its online presence to Joel Cape’s LinkedIn account, showing an intention to appropriate his name and likeness in violation of the state statute.

Negligence. Cape had argued that CLP owed a duty of care which it breached by using its confusingly similar mark, causing injury and therefore supporting a common law negligence claim. The court found no indication of any such duty owed to a competitor in the applicable case law and therefore dismissed this count.

The court granted the motion to dismiss as to the negligence count and denied it as to the remaining issues.

The Case is No. 5:24-cv-05104-TLB.

Judge: Brooks, T.

Attorneys: Joel E. Cape (Law Office of Joel E. Cape, PLC) for Joel E. Cape, PLC d/b/a Cape Law Firm, PLC. Adam L. Hopkins (Rose Law Firm) for Cape Law PC.

Companies: Joel E. Cape, PLC d/b/a Cape Law Firm, PLC; Cape Law PC

Cases: PublicityRights Trademark ArkansasNews