Wendy’s ran a promotion with Guinness World Records in which each Kid’s Meal included Guinness-themed toys. One version of the Kid’s Meal contained a “footbag,” also commonly known by its brand name, Hacky Sack, and an instructional card with copy stating, “Back in 1997, Ted Martin made his world record of 63,326 kicks in a little less than nine hours!” Ted Martin sued Wendy’s for violations of the Illinois Right of Publicity Act and Section 43(a) of the Lanham Act. Martin’s right of publicity claim was found to be barred based on a one-year statute of limitations. On the issue of standing for purposes of his Lanham Act claim, the court found that Martin had an economic interest in controlling the commercial exploitation of his identity sufficient to establish standing.

Martin alleged that use of the term “record-breaking” in connection with the Kid’s Meal footbag constituted false advertising under section 43(a)(1)(B) of the Lanham Act because neither Martin nor anyone else used that particular footbag to break records. The court dismissed the claim, noting the term “record-breaking” to be non-actionable puffery as used in this context. The court also found that the claim should be dismissed because Martin did not allege that use of the term “record-breaking” identified or was in any way related to Martin.

Martin also alleged that the use of his name on the instructional card constituted false endorsement under section 43(a)(1)(A) of the Lanham Act. However, the court disagreed, finding that the use of Martin’s name in a factual, historical manner in an instructional card inside the Kid’s Meal was not likely to lead consumers to believe that Martin endorsed Wendy’s. The court reasoned that the use was limited to only his name, and the instructional card using his name was only inside the product, so consumers only encountered Wendy’s use of Martin’s name after they purchased the product.

TIP: Despite the advertiser-favorable outcome in this case, companies should use caution when using a third-party’s name, likeness, or identifying indicia for any commercial purposes without permission. Unlike Lanham Act false endorsement claims, which require a showing of likelihood of confusion, right of publicity claims generally only require use of the name for a commercial purpose to state a cause of action.