Johannes “Ted” Martin (“Martin”) holds the men’s singles Guinness World Record for most consecutive footbag kicks – 63,326 kicks while keeping the bag airborne. He accomplished this feat over almost nine hours, quite a bit longer than the usual hacky circle back-and-forth at a jam band summer festival. For those of you not in the know, footbags are commonly referred to as Hacky Sacks, which is a popular brand that produces many footbag toys. This past month, the footbag world record holder failed to keep his false endorsement legal claims brought against fast food restaurant chain Wendy’s International Inc. (“Wendy’s”) and Guinness World Records Limited (“Guinness”) from hitting the ground when the Seventh Circuit denied his petition for an en banc rehearing. (Martin v. Wendy’s Int’l, Inc., No. 17-2043 (7th Cir. Apr. 9, 2018)). Martin had sued Wendy’s and Guinness for federal Lanham Act and state right of publicity claims over a Kid’s Meal promotion that included a footbag and referred to Martin by name in conjunction with his record. The Seventh Circuit panel, like every court that has heard Martin’s case thus far, found no viable claims. 

Martin’s beef with Wendy’s stems from a six-week joint advertising campaign that ran during the summer of 2013 between Wendy’s and Guinness. According to a Guinness publication, the two companies entered into “a partnership sure to add a little friendly record-breaking competition to family dining.” From August 12 to September 22 in the United States and Canada, every Wendy’s Kid’s Meal came with one of six Guinness “record-breaking” toys. Amongst the six toys was a “trick footbag.” The words “Guinness World Records” were written on the footbag toys and their packaging, and the text on both sides of the Kid's Meal bag referred to the promotion's six "record-breaking toys." 

Most relevant to this suit, the Hacky Sack came with an instructions card that showed two people (notably, not the plaintiff) playing the game. It also listed three world records aside from Martin’s below the picture. Directly under the instructions heading, the card read: “How many times in a row can you kick this footbag without it hitting the ground? Back in 1997, Ted Martin made his world record of 63,326 kicks in a little less than nine hours!” The card had further instructions on how to play and ended with the question, “What kind of family record can you set?” 

Martin, who represented himself pro se, tried to keep both federal and statelaw claims aloft in his first appearance in court, which is perhaps not a trick that should be tried at home. In 2015, Martin filed his complaint asserting two claims under the Lanham Act and an Illinois right of publicity claim. First, Martin alleged that by using his name on the instruction card, the public was confused into thinking that he endorsed the free footbag toy. Second, by calling the toy “record-breaking” Martin claimed the defendants misled the public into believing the give-away footbag is the same as the one he used to set the world record. Finally, on the state level, Martin argued Wendy’s and Guinness violated the Illinois Right of Publicity Act by using his name for commercial purposes without his written consent. In May 2016, an Illinois district court granted Wendy’s and Guinness’s motion to dismiss. In 2017, following the plaintiff’s filing of an amended complaint, the court again dismissed the suit, punting the action out of the legal circle. The district court ruled, among other things, that plaintiff’s Illinois right of publicity action was barred by a statutory exception, which exempts the use of an individual’s name in truthfully identifying the person as the author of a particular performance (see 765 ILCS 1075/35(b)(3) 765 ILCS 1075/35(b)(3)). In addition, it rejected the Lanham Act claims as the plaintiff failed to plausibly allege that ordinary consumers were likely to believe he endorsed the free footbags. Merely mentioning the plaintiff’s record in the instruction materials was not enough. Moreover, the court noted that the reference to Martin’s record served at most as "an illustrative example" of what to do with a footbag, and had nothing to do with the qualities of the footbag from an advertising standpoint. 

In March 2018, the Seventh Circuit affirmed the district court’s decision in favor of Wendy’s and Guinness (Martin v. Wendy’s Int’l, Inc., No. 15-6998 (7th Cir. Mar. 9, 2018) (nonprecedential)). Refusing to keep Martin’s hack going, the Seventh Circuit found no reasonable consumer would think that Martin endorsed the toy footbags because an instructional card factually identified Martin as a record holder. If anything, the appeals court stated that the appearance of “Guinness World Records” on the footbag might prompt a reasonable consumer to conclude that Guinness—not Martin—was associated with the footbag. As to the second Lanham Act claim, to survive dismissal, the plaintiff was required to show that the defendants made "a material false statement of fact in a commercial advertisement and that the false statement deceived or had the tendency to deceive a substantial segment of its audience." In shredding this claim, the Seventh Circuit found no misrepresentation or possibility for consumer confusion because calling the toy “record breaking” was mere non-actionable puffery, not deception. It also found no reasonable consumer “would believe that free toys accompanying kids’ meals to encourage intra-family play were the same types of items used to set world records.” 

As to the Illinois right of publicity claims, the Seventh Circuit agreed with the lower court and ruled that the statutory exception, as mentioned above, which allows for the truthful use of an individual’s name in connection with his or her own performance, barred Martin’s claims. Martin argued this exception does not apply to this contest, because he did not perform in the defendant’s promotion. However, the court noted that such a qualification does not appear in the statute. As Wendy’s and Guinness truthfully identified the plaintiff as the holder of one of the Guinness world records, the court found this to be the exact type of instance to which the carve-out was meant to apply. 

Martin is a world record holder boasting an amazing footbag achievement, but, with the Seventh Circuit rejecting an en banc rehearing of the dispute, it appears his side career as a pro se litigant is not on the same trajectory