IP Law Daily, TRADEMARK—E.D.N.C.: ‘Clumsy’ use of photo editing software is no defense to Lanham Act claim, (Jun 1, 2026)

By Matthew Hersh, J.D.

But a jury will have to resolve whether the plaintiffs filed their lawsuit in time.

A North Carolina strip club that altered the images of two dozen models to suggest that those models endorsed or worked at the club could not dodge a Lanham Act lawsuit on the ground that their “clumsy” use of photo editing software should have alerted consumers that the models were not in fact associated with the club, the federal court for the Eastern District of North Carolina has held. But the court, in rejecting the club’s defense on the merits, found that a federal jury would have to decide whether the models acted in a timely manner to bring their claim after discovering the alleged misuse of their images (Mitcheson v. Mistylou Investments, LLC, No. 7:23-cv-01587-BO-KS (E.D.N.C. May 26, 2026)).

The lawsuit was brought by 28 actresses, models, and social media influencers who earn their living by promoting and licensing their likenesses and identities. Their complaint took aim at Tobie’s Gentleman’s Club, a Jacksonville, North Carolina strip club that they accused of misappropriating their images and using them in more than 160 advertisements. In addition to taking the images without permission, the complaint asserts, the strip club also altered those images to make it appear as if the models either worked at or endorsed the club. The lawsuit, which targeted the club as well as its owner, brought claims of false advertising and false association under the Lanham Act as well as a serious of other claims under North Carolina law.

Both sets of parties moved for summary judgment, leading to this opinion.

Statute of limitations. The court first easily dismissed a challenge to the claims under the statute of limitations. With respect to the Lanham Act claims, the court noted, while there was no express statute of limitations under the Act, court generally consider claims untimely under the doctrine of laches if they are filed after the expiration of the statute of limitations for the most analogous state law—which in this case was North Carolina common law fraud, with a three-year limitations period after discovery of the claim. Here, the court noted, many of the advertisements in question were filed more than three years before the filing of the complaint. But the strip club identified “no evidence in the record which would demonstrate that there is no genuine dispute of material fact as to when plaintiffs should have discovered the facts constituting the alleged false advertising and false association,” the court noted. The strip club could still pursue this defense at trial, but it could win summary judgment based on the record.

The court reached a similar conclusion about the state law claims. The statutes of limitations for each of these claims, as with fraud, the court noted, started the clock only at discovery of the claim. Once again, the court noted, the strip club had not met its burden of proof at summary judgment. “At a minimum,” the court noted the model’s declarations “create a question of fact as to when they first became or should have become aware of the publication of their images by defendants.” These claims, too, would remain.

Lanham Act. The court issued a split ruling on the merits of the summary judgment claim. For most of the models whose images were used without authorization, the court noted, open factual questions about the application of the statute of limitations to their case meant they could not prevail before trial. But four of the models brought claims that the strip club did not challenge on statute of limitations grounds, the court noted—and all four of those were entitled to prevail on their claims on the merits. The strip club argued, the court noted, that its “clumsy” use of photo editing software “should have alerted consumers that plaintiffs are not, in fact, associated with defendants.” But the strip club never disputed that they had used the four models’ images in their advertising without permission—and that was enough, the court found, to grant summary judgment to those models.

The Case is No. 7:23-cv-01587-BO-KS.

Judge: Boyle, T.

Attorneys: John V. Golaszewski (Casas Law Firm, PC) for Dessie Mitcheson. Aretina K. Samuel-Priestley (O'Hagan Meyer PLLC) for Mistylou Investments, LLC.

Companies: Mistylou Investments, LLC

Cases: Trademark TechnologyInternet NorthCarolinaNews