UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO: 9:20-cv-80847-RJS 

THE GEO GROUP, INC. and 

GEO TRANSPORT, INC. 

 

Plaintiffs, 

v. 

NETFLIX, INC., 

Defendant. 

______________________________________________/ 

DEFENDANT NETFLIX, INC.’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

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Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Netflix, Inc. (“Netflix”) 

hereby submits this memorandum of law in support of its motion to dismiss the complaint filed on 

behalf of Plaintiffs The GEO Group, Inc. (“GEO Group”) and GEO Transport, Inc. (“GEO 

Transport,” and collectively, “Plaintiffs”). 

PRELIMINARY STATEMENT 

Plaintiffs claim that Netflix’s Messiah – an artistic expressive work indisputably protected 

by the First Amendment – infringes their trademarks and defames the professed pristine reputation 

of its immigrant detention centers and transportation services. Plaintiffs’ claims are based on 

massively distorted descriptions of the alleged “uses” of their names in Messiah, when in reality, 

as the Court can see for itself, the references at issue are either imperceptible or fleeting 

background material. Plaintiffs’ lawsuit is an affront to the First Amendment and an abuse of the 

Court system for Plaintiffs’ own public relations stunt, for which Netflix seeks to recover its 

attorneys’ fees pursuant to Florida Statute Section 768.295.1

Messiah is plot-driven fictional thriller that unravels the mystery surrounding a fictional 

character known as al-Masih. In the television series’ ten episodes, a CIA officer strives to 

determine if al-Masih is a miracle-worker possessing biblical powers, or a charlatan attempting to 

destabilize the government. 

GEO Group is a real estate investment trust in the business of constructing and managing 

detention facilities for local, state and federal governments. GEO Transport, a subsidiary of GEO 

Group, provides transportation services to the GEO Group’s detention facilities. 

An actual review of the episodes in question reveals the frivolity of Plaintiffs’ claims. 

While Plaintiffs present the Court with cropped, enlarged and touched up images plucked out of 

 

1

 Netflix has simultaneously filed an anti-SLAPP motion. 

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context from Messiah, and have filed with the Court annotated versions of the episodes with bright 

red “LOOK HERE” arrows, conceding the “blink-and-you’ll-miss-them” nature of the disputed 

images, the GEO name is, in fact, never uttered once in the episodes.2 Simply put, a barely legible 

“GEO” patch on a costume shoulder patch, or an image of a vehicle with “GEO” parked in a 

parking lot in a fictional work is not actionable. 

Nonetheless, in flagrant disregard of the First Amendment protections afforded to 

expressive works, Plaintiffs assert defamation, trademark, and unfair competition claims under the 

Lanham Act, along with equivalent state law causes of action. Specifically, GEO Transport has 

brought six claims against Netflix based on two seconds of episode three – in which a bus bearing 

the GEO Transport logo is seen among numerous other damaged vehicles and buildings in the 

aftermath of a tornado’s destruction. The episode says nothing about GEO Transport’s business, 

and has nothing to do with immigrant detention facilities at all. 

GEO Group has also brought six claims based on four snippets in episode four (which 

collectively total twenty-six seconds), where GEO Group’s logo is allegedly visible. The episode 

focuses on al-Masih’s capture by the United States government, and the ensuing courtroom drama 

as to whether al-Masih will be deported. In a handful of scenes, al-Masih is shown being 

transported by a Department of Homeland Security van (not a GEO van) to an unnamed facility, 

and once there, interrogated by the CIA officer. GEO Group alleges that, in four scattered clips – 

 

2

 Netflix respectfully submits that the Court review undoctored versions of the episodes at issue, 

which are the subject of Netflix’s concurrent Motion Permitting the Conventional Filing of DVDs. 

For the Court’s convenience, the full series of Messiah is being submitted on DVD (the “DVD 

Ex.”). The DVD Exhibit is incorporated by reference into Plaintiffs’ Complaint. In ruling on a 

motion to dismiss, the Court may consider: (1) any material attached to the complaint as an exhibit 

(2) materials incorporated by reference and (3) documents that, although not incorporated by 

reference, are integral to the complaint and (4) matters on which a court may take judicial notice. 

See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); Tellabs, Inc. v. Makor Issues & Rights, 

Ltd., 551 U.S. 308, 322-23 (2007).

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each spanning between three to nine seconds – its name or logos are used (alongside the logos of 

numerous government agencies and other background details designed to modernize Messiah’s 

plot) and, depicted in such a way as to cause GEO Group harm because these references somehow 

falsely state that GEO detains immigrants in “overcrowded overheated rooms with chain-link 

cages and deprives them of beds, bedding, sunshine, recreation and educational opportunities.” 

(See Compl. ¶ 51). There is no such statement regarding GEO. Plaintiffs also do not articulate 

what “harm” or “damages” has befallen them as a result of these flickering glimpses – nor could 

they, as Plaintiffs do not sell goods or services to the public, but instead operate detention centers 

and related transportation services, with their biggest customer being the United States government. 

(See id. ¶ 15). 

Plaintiffs’ claims should be dismissed pursuant to well-established Eleventh Circuit 

precedent that protects creative fictional works against overly litigious corporations that wish to 

squelch artistic expression which does not square with their preferred, manicured self-image. 

Under the governing Rogers test (expressly adopted by the Eleventh Circuit), Plaintiffs’ trademark 

and unfair competition claims fail as a matter of law because: (i) Messiah is an expressive work 

protected by the First Amendment; (ii) the momentary background use of Plaintiffs’ logos in 

scenes depicting an immigrant detention center has artistic relevance to the work, and (iii) Netflix 

has not explicitly mislead anyone into thinking that Plaintiffs were involved in the production of 

the television show. Plaintiffs’ state law claims fail for these same very reasons. 

Plaintiffs’ defamation claims also suffer from multiple fatal deficiencies. First, the 

defamation claim improperly lumps GEO Group and GEO Transport together in a transparent 

attempt to disguise that there is no statement in Messiah at all about GEO Transport in the two 

seconds its logo appears amid a montage of a town destroyed by a tornado, much less one that can 

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be construed as defamatory. Second, GEO Group’s defamation claim ignores the broader context 

of the episode in which the GEO Group’s name or logo briefly appears (if anyone even perceives 

it). When episode four of Messiah is assessed in context, as required under binding precedent, it 

becomes readily apparent that no ordinary viewer would perceive the brief scenes depicting an 

immigration detention facility involving numerous governmental agencies as “of and concerning” 

GEO Group specifically. 

Plaintiffs’ Complaint is a poorly-guised marketing ploy designed to whitewash real-life 

governmental findings of abuse,3 a waste of this Court’s time, and an untenable confinement of 

First Amendment values. This Court should reject Plaintiffs’ use of litigation to silence artistic 

endeavors that do not comport with their self-serving imagery, and dismiss Plaintiffs’ Complaint 

in its entirety, with an award of attorneys’ fees. 

FACTUAL AND PROCEDURAL BACKGROUND 

A. Netflix Releases Messiah, a Fictional Television Series. 

Messiah is a ten-episode television show distributed by Netflix that ran for one season. 

(See generally DVD Ex.) This fictional, plot-driven thriller focuses on the cat-and-mouse game 

between two characters: al-Masih (played by Mehdi Dehbi), a mysterious religious leader who 

quickly gains followers in the Middle East and the United States, and Eva Geller (played by 

Michelle Monaghan), a CIA officer charged with investigating al-Masih’s past and his motives. 

(See id.) Messiah imagines how the modern world would react to a messianic figure who seems 

to perform miracles and whose followers view him as a savior. (See id.) The show derives 

 

3

 By way of example, in 2019, the Officer of Inspector General found inhumane conditions that

violated ICE standards in two GEO detention centers that housed ICE detainees. (Attached hereto 

as Exhibit A is the Declaration of James G. Sammataro (“Sammataro Decl.”). A true and correct 

copy of the Officer of Inspector General’s report is attached as Exhibit 1 to the Sammataro Decl.). 

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dramatic tension from the ongoing mystery concerning al-Masih’s past and Geller’s quest to 

discover if he is a terrorist, a con man, or an actual miracle-worker. (See id.) Through its fictional 

narrative, Messiah explores themes about the nature and tolerance of religious beliefs and how 

governments react to religious movements. Immigration policy and treatment of immigrants is 

hardly a focus of the plot. (See id.) 

The name “GEO” is never spoken by any character at any time in the series. (See id.) Each 

episode ends with a disclaimer in the credits that “[t]he characters and events depicted in this 

program are fictitious. No depiction of actual persons or events is intended.” (DVD Ex., Disc 2, 

01:31:34.) 

B. GEO Transport’s Logo Appears Once, in a Two-Second Scene Showing 

Tornado Damage in Episode Three. 

GEO Transport’s six claims derive entirely from the appearance of the name “GEO 

Transport” on a bus, which is the first reference to GEO in the series and “appears” for two seconds 

in episode three of Messiah. The episode revolves around a small town in Texas, and the pastor 

of a local church fraught with desperation over his dwindling congregation. (See generally DVD 

Ex., Disc 5.) The pastor’s desperation spurs his plan to secretly burn down his own church for the 

insurance proceeds, only for the plan to be interrupted by the tornado and the arrival of al-Masih, 

who appears to have saved his church from the tornado’s destruction. (See generally DVD Ex., 

Disc 5.) 

The CIA learns that al-Masih has mysteriously arrived in Texas, having been in Jordan 

hours before, and immediately dispatches a local agent to capture him. (See generally DVD Ex., 

Disc 5.) In a two-minute sequence, the audience is introduced to Department of Homeland 

Security agent Will Mathers, as he drives through rural Texas to inspect the miraculously spared 

church. (DVD Ex., Disc 5, 09:35-11:35.) The sequence features several shots of the tornado’s 

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devastating wake. Among the wreckage are destroyed homes and dozens of ruined vehicles, 

including a damaged GEO Transport bus, which is perceptible, along with a host of other vehicles 

and destruction, for at most two seconds. (Compl. ¶ 30; DVD Ex., Disc 5, 11:17-11:19.) The shot 

of the damaged GEO Transport bus is immediately preceded by a shot of a firefighter walking 

among other destroyed vehicles, and immediately followed by a shot of Mathers pulling up to the 

wreckage surrounding the untouched church. (DVD Ex., Disc 5, 11:17-11:40.) 

Preceding Shot Following Shot 

The sequence ends with a dramatic aerial perspective showing the scope of the tornado’s 

destruction, starkly contrasted with the still-standing church. (DVD Ex., Disc 5, 11:38-11:52.) 

Mathers then takes al-Masih into custody and detains him at a local sheriff’s office. (DVD 

Ex., Disc 5, 25:32-25:44.) Episode 3 concludes without discussing or mentioning the GEO name. 

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The episode does not contain any discussion about GEO or immigrant detention centers and thus 

this first mention to GEO is untethered to any association whatsoever with GEO Transport’s (or 

GEO Group’s) business. The two second glimpse of a bus bearing the “GEO Transport” name 

among the wreckage is the only time that GEO Transport appears on screen. 

C. GEO Group’s Name or Logo Appears in Four Barely Visible Snippets in 

Episode Four. 

GEO Group’s claims all derive from its allegation that its name or logo is visible four times 

in episode four of Messiah. At the beginning of this episode, al-Masih is transported from the 

local sheriff’s office to a detention facility in a van marked with a Department of Homeland 

Security logo. al-Masih spends the majority of the episode either in an Executive Office for 

Immigration Review courtroom, or sitting alone in the detention center. (See generally DVD Ex., 

Disc 5.) In one scene, al-Masih is interrogated at the detention center, not by a GEO employee, 

but by CIA officer Geller. During the interrogation, Geller asks, “Are they treating you OK?” to 

which al-Masih responds “Yes, thank you.” (DVD Ex., Disc 5, 45:40-45:47.) The GEO name or 

logo does not appear during any of the scenes where al-Masih is interrogated.4 In a surprise twist 

at the end of the episode, the immigration judge grants al-Masih asylum, freeing him from custody. 

(See generally DVD Ex., Disc 5.) 

GEO Group complains of four fleeting uses of the GEO logo. These four appearances are 

buried in the background; are never the focus of the scene; and range from approximately three to 

nine seconds each. (Compl. ¶¶ 31-32.) Of the four camera shots, two do not even depict how 

immigrants are housed at a detention center. In one seven-second shot (DVD Ex., Disc 5, 41:00-

 

4

 The characters playing United States intelligence officers debate whether their strategic goals are 

best served by al-Masih being deported back to Israel, where Israeli intelligence wish to continue 

interrogating him, or keeping al-Masih in the United States, where domestic intelligence agencies 

could continue to monitor him. (See generally DVD Ex., Disc 5.) 

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41:07), a car that bears the GEO Group logo is parked in a parking lot as the Department of 

Homeland Security van carrying al-Masih into the facility – which is clearly the focus of the shot 

– passes by.5 In another four-second shot (DVD Ex., Disc 5, 52:43-53:47), security guards with 

“GEO Group” patches on their arm escort al-Masih from the interrogation room down an empty 

hallway.6 

There are only two shots that include “GEO” in the same frame as detained immigrants. 

In a nine-second shot (DVD Ex., Disc 5, 01:10:50-01:10:59), a security guard with a “GEO” arm 

patch and DOJ attorney both observe al-Masih on a security camera while he is alone in a cell, 

sitting peacefully. And in a six-second shot (DVD Ex., Disc 5, 01:19-48-01:19:54), a security 

guard with a barely perceptible “GEO” patch is visible through a fan, while a crackling radio 

mentions that it is hot (contrary to GEO Group’s characterization, there is no mention of whether 

or not the facility is air-conditioned). 

The guards who wear the GEO patches on their costumes in episode four are listed in the 

credits as “Security Room Guard,” not as “GEO Guard.” (DVD Ex., Disc 5, 01:24:29.) As was 

the case with episode three, the name “GEO” is never uttered in the fourth episode. Aside from 

these fleeting displays in episode four, GEO Group’s logo never appears in Messiah and, indeed, 

 

5

 The image included at paragraph 31 of Plaintiffs’ Complaint has been cropped and appears to 

use artificial color correction to make the GEO logo appear prominent. An accurate, unaltered 

version of the shot, where the GEO logo is nearly indiscernible, is attached. (Compare Compl. Ex. 

A with Sammataro Decl., Ex. 2). A review of the scene at issue reveals that the viewers’ eyes are 

directed towards the opening gate and moving vans carrying the protagonist into the facility, and 

not the parked cars in the background. 

6

 Plaintiffs’ Complaint, perhaps purposefully, does not distinguish which shots feature the GEO 

Group logo as opposed to the GEO Transport logo. Even though the image in paragraph 31 of the 

Complaint has been manipulated and enlarged to enhance the visibility of the car in the parking 

lot, it is still difficult to discern whether it is a GEO Group or GEO Transport logo. Either way, 

this use of “GEO” cannot possibly rise to the level of defamation or trademark infringement. 

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there are no other scenes in the ten-episode series featuring an immigration detention facility. (See 

generally DVD Ex.) 

LEGAL ARGUMENT 

“To survive a motion to dismiss, a [pleading] must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although courts 

must accept a pleading’s factual allegations as true, courts do not “accept as true ‘unwarranted 

deductions of fact’ or legal conclusions.” Henry v. Jones, 484 F. App’x 290, 291 (11th Cir. 2012) 

(citation omitted). “A complaint is also subject to dismissal under Rule 12(b)(6) when its 

allegations on-their-face show that an affirmative defense bars recovery on the claim.” Marsh v. 

Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir. 2001). 

As set forth below, Plaintiffs’ trademark infringement and unfair competition claims fail 

as a matter of law because the First Amendment protects Netflix’s fictitious television show and 

Netflix has not mislead audiences into thinking that Plaintiffs created or sponsor the creative work. 

GEO Transport’s defamation claim is facially absurd, since there is no statement susceptible to a 

defamatory meaning that can possibly be conveyed by the one fleeting, out-of-context image of a 

tornado-damaged bus with its name. GEO Group’s defamation claim also fails, as there is no 

statement “of or concerning” GEO Group amid the numerous references to the U.S. government.7

 

7 Netflix also reserves its right to assert additional affirmative defenses to Plaintiffs’ respective 

defamation claims, including but not limited to that neither GEO Plaintiff has been defamed, 

Plaintiffs’ reputations are already materially tarnished by prior reporting of their human rights 

violations and that Plaintiffs have engaged in sham pleading by labeling a trade libel claim as 

defamation per se in an attempt to avoid the requirement to show actual damages.

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I. PLAINTIFFS’ TRADEMARK-RELATED CLAIMS FAIL AS A MATTER OF LAW.

A. Plaintiffs’ Federal Trademark Infringement and False Designation of Origin 

Claims Fail as a Matter of Law Under the Rogers Test. 

The Eleventh Circuit “construe[s] the Lanham Act narrowly when deciding whether an 

artistically expressive work infringes a trademark.” University of Alabama Bd. of Trustees v. New 

Life Art, Inc., 683 F.3d 1266, 1278 (11th Cir. 2012). Plaintiffs’ claims that Netflix’s display of 

GEO logos on background props and costumes in the fictional Messiah constitute trademark 

infringement and false designation of origin are a direct affront to the First Amendment protections 

afforded to artistic works.8 

The broad First Amendment protection for artistic works faced with Lanham Act claims 

was addressed in the seminal case of Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). At issue 

in Rogers was a fictional film about a dancing Italian couple, entitled “Ginger and Fred.” Id. at 

996–97. Ginger Rogers, a dancer who famously worked with Fred Astaire, sued under Section 

43(a) of the Lanham Act, claiming that the film’s title infringed the trademark she held in her own 

name, which she had previously licensed. Id. at 996-97. The Second Circuit held that the First 

Amendment precluded a Lanham Act claim levied against an expressive work, unless the use of 

the trademark has no artistic relevance to the underlying work whatsoever or unless the defendant 

explicitly misleads the consumer as to the source or content of the work. Id. at 999. 

The Eleventh Circuit explicitly adopted the Rogers test in 2012, holding that the First 

Amendment barred the University of Alabama from asserting trademark claims against an artist 

who painted famous scenes from Alabama football history that depicted the University’s uniforms, 

helmet design, and crimson and white color scheme. See Univ. of Alabama, 683 F.3d at 1276. 

Emphasizing the importance of protecting creators’ First Amendment rights, the Eleventh Circuit 

 

8

 The Eleventh Circuit has repeatedly held that claims for trademark infringement and false 

designation of origin under the Lanham Act are subject to the same form of analysis under the 

Rogers Test. Univ. of Alabama, 683 F.3d at 1278 (citing Tana v. Dantanna’s, 611 F.3d 767, 777 

n. 9 (11th Cir. 2010)). Consequently, the following analysis applies to Plaintiffs’ Count Two (15 

U.S.C. § 1114) and Count Three (15 U.S.C. § 1125(A)(1)(a)).

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held that the “risk of misunderstanding, not engendered by any overt [misrepresentation by the 

defendant] is so outweighed by the interest in artistic expression[,] as to preclude any violation of 

the Lanham Act.” Id. at 1279 (quoting Rogers, 875 F.2d at 1001) (quotations omitted). Although 

the facts of Rogers concerned only the title of the film in question, the Eleventh Circuit joined 

other sister circuits and expressly held that the Rogers test also applies “in cases where trademark 

law is being used to attack the content – as opposed to the title – of works protected by the First 

Amendment.” Id. at 1277. 

As a result, Messiah’s “artistically expressive use of a [GEO] trademark will not violate 

the Lanham Act ‘unless the use of the mark has no artistic relevance to the underlying work 

whatsoever, or, if it has some artistic relevance, unless it explicitly misleads as to the source or the 

content of the work.’” Id. at 1278 (quoting ESS Entm’t 2000, Inc. v. Rock Star Videos, Inc., 547 

F.3d 1099 (9th Cir. 2008)). Numerous courts in this Circuit have dismissed trademark claims on 

a 12(b)(6) motion because for failing the Rogers test. See, e.g., Vallejo v. Narcos Prods., LLC, 

No. 1:18-CV-23462-KMM, 2019 WL 5884513, at *4 (S.D. Fla. May 24, 2019) (dismissing 

trademark claim of former mistress of Pablo Escobar on ground that fictionalized depiction of her 

in television show Narcos was permissible under the Rogers test); Valencia v. Universal City 

Studios LLC, No. 1:14-CV-00528-RWS, 2014 WL 7240526, at *8 (N.D. Ga. Dec. 18, 2014); Louis 

Vuitton Malletier S.A. v. Warner Bros. Entm’t Inc., 868 F. Supp. 2d 172, 181 (S.D.N.Y. 2012). 

B. Messiah Is an Expressive Work Protected By the First Amendment.

A narrative, fictional television show like Messiah is a form of expressive speech protected 

by the First Amendment. See Vallejo, 2019 WL 5884513, at *4 (applying Rogers test to Netflix 

television series Narcos); Valencia, 2014 WL 7240526, at *1 (applying Rogers test to the film 

Honey); Twentieth Century Fox TV v. Empire Distrib., Inc., 875 F.3d 1192, 1197 (9th Cir. 2017) 

(applying Rogers to television series Empire). The fact that a creative work may be produced for 

commercial distribution does not lessen the scope of the First Amendment protection afforded to 

the work. See Univ. of Alabama, 683 F.3d at 1276. 

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1. The Alleged Use of Plaintiffs’ Logos Meets the Purposefully Low 

Threshold for “Artistically Relevant”. 

The uses of GEO’s logos at issue are artistically relevant for the scenes in Messiah that 

take place in a fictional immigrant detention center. Likewise, the depiction of the damaged GEO 

Transport bus in a town near the Mexican border visually imparts the toll of the tornado’s 

destruction and the inexplicable sparing of the pastor’s church. “The threshold for ‘artistic 

relevance’ is purposely low and will be satisfied unless the use ‘has no artistic relevance to the 

underlying work whatsoever.’” Louis Vuitton, 868 F. Supp. 2d at 178 (quoting Rogers, 875 F.2d 

at 999). “[I]t is not the role of the Court to determine how meaningful the relationship between a 

trademark and the content of a literary work must be; consistent with Rogers, any connection 

whatsoever is enough.” Dillinger, LLC v. Elec. Arts Inc., No. 09–cv–1236 (JMS)(DKL), 2011 WL 

2457678, at *6 (S.D. Ind. June 16, 2011) (finding the name “Dillinger” in reference to a Tommy 

Gun had an above-zero relevance to a video game that enabled players to act like mafia members). 

Messiah uses numerous real-life logos and trade names to frame the fictionalized story, 

enhance the viewing aesthetics, and accentuate the plot. In episode four alone, the Department of 

Homeland Security, the Central Intelligence Agency, the Department of Justice’s Executive Office 

of Immigration Review, and the American Civil Liberties Union are all depicted as playing roles 

in al-Masih’s deportation proceeding. (See generally, DVD Ex., Disc 5.) The episode is also 

replete with references to contemporary news and social media companies (e.g., Fox News, CNN, 

MSNBC, Facebook) that enhance the viewers’ sense that the action is occurring during the present 

day. (See generally, DVD Ex., Disc 5.) 

Courts have repeatedly held that use of real-life trademarks to enhance the sense of realism 

in a fictional work satisfies the “artistic relevance” prong of the Rogers test. See, e.g., VIRAG, 

S.R.L. v. Sony Computer Entm’t Am. LLC, No. 3:15-CV-01729-LB, 2015 WL 5000102, at *11 

(N.D. Cal. Aug. 21, 2015), aff’d, 699 F. App’x 667 (9th Cir. 2017) (holding on Rule 12(b)(6) 

motion that use of VIRAG® mark on video game race car livery had artistic relevance because it 

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enhanced the realism of the simulated race); see also Univ. of Alabama, 683 F.3d at 1278-79 (“The 

depiction of the [plaintiff’s football team’s] uniforms in the content of these items 

is artistically relevant to the expressive underlying works because the uniforms’ colors and designs 

are needed for a realistic portrayal of famous scenes from Alabama football history.”). 

2. Messiah Does Not Explicitly Mislead as to Its Source or Content.

Plaintiffs do not allege, nor can they, that Netflix has explicitly mislead any consumer 

about the source or content of Messiah – much less that Netflix has mislead consumers into 

believing that GEO Group or GEO Transport are the producers or sponsors of Messiah. “To be 

‘explicitly misleading,’ the defendant’s work must make some affirmative statement of the 

plaintiff’s sponsorship or endorsement, beyond the mere use of plaintiff’s name or other 

characteristic.” Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 947 F. Supp. 2d 922, 932 (N.D. 

Ind. 2013), aff’d, 763 F.3d 696 (7th Cir. 2014) (emphasis added) (quoting Dillinger, 2011 WL 

2457678). When the “extent of [defendant’s] use of the [plaintiff’s] trademarks is their mere 

inclusion . . . in the body of the image,” the explicitly misleading prong of the Rogers test is not 

satisfied and the Lanham Act claims must be dismissed. Univ. of Alabama, 683 F.3d at 1279. 

Plaintiffs also do not, nor can they allege, that Netflix marketed Messiah as “endorsed” or 

“sponsored” by GEO Group, or otherwise made an explicit statement that Messiah was affiliated 

in any way with GEO Group. Id. at 1279; cf. Compl. ¶¶ 63-88. To the contrary, Messiah is 

accessible only on Netflix’s streaming platform, shows the Netflix red “N” logo and a title card 

saying “A Netflix Original Series” at the beginning of each episode, and makes no mention of 

GEO Group or GEO Transport in the episodes’ credits. Indeed, the actors who don the GEO Group 

logo on their costume are credited only as “security guards,” not as having any connection to 

Plaintiffs. (DVD Ex., Disc 5, 01:24:29; 01:24:31); see Stewart Surfboards, Inc v. Disney Book 

Grp., LLC, No. CV 10-2982 GAF (SSX), 2011 WL 12877019, at *7 (C.D. Cal. May 11, 2011) 

(dismissing trademark claims for failure to meet the “explicitly misleading” prong of the Rogers

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test and noting that the disputed book’s “jacket and spine include the Disney logo, the ‘Disney 

Press’ logo, and the Disney channel logo . . .”). 

Moreover, the context of Netflix’s use of the GEO logo or name makes it implausible that 

a consumer would assume Plaintiffs to be the source of the television series. No reasonable 

consumer would assume that Plaintiffs, who are in the business of operating detention facilities 

and detainee transports, branched out into the production of a fictional thriller television series. 

See E.S.S. Entm’t 2000, Inc., 547 F.3d at 1100-01 (“A reasonable consumer would not think a 

company that owns one strip club in East Los Angeles, which is not well known to the public at 

large, also produces a technologically sophisticated video game like [Grand Theft Auto] San 

Andreas.”). 

Because the minimal, fleeting use of Plaintiffs’ logos is artistically relevant to Messiah and 

Messiah does not explicitly mislead consumers as to the source or content of the work, Plaintiffs’ 

federal trademark infringement and false endorsement claims are barred by the First Amendment 

under the Rogers test and fail as a matter of law. 

C. Plaintiffs’ State Law Trademark and Unfair Competition Claims Fail. 

Plaintiffs’ claims for state law trademark infringement, unfair competition, and violation 

of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”) are premised on the same 

facts as Plaintiffs’ Lanham Act claims: the use of Plaintiffs’ logos in the episodes three and four. 

(Compl. ¶¶ 90-106.) It is well established that in the Eleventh Circuit, “[c]ourts may use an 

analysis of federal [trademark] infringement claims as a ‘measuring stick’ in evaluating the merits 

of state law claims of unfair competition.” Suntree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 

1338, 1345 (11th Cir. 2012) (quoting Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 

1193 n4 (11th Cir. 2001)); see also Natural Answers, Inc. v. SmithKline Beecham Corp., 529 F.3d 

1325, 1332–33 (11th Cir. 2008) (“Since Natural Answers is unable to bring an unfair competition 

claim under the Lanham Act under the theory of either false advertising or trademark infringement, 

it follows that the common law claims based on unfair competition and trademark infringement 

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must fail as well.”) (citation omitted). 

This principle remains true when Lanham Act claims are disposed of by the Rogers test, 

instead of other Lanham Act defenses such as lack of a valid trademark or lack of customer 

confusion. See Vallejo, 2019 WL 5884513, at *5 (dismissing trademark claim against television 

program Narcos based on Rogers test and thus “for the same reasons Plaintiff fails to state a claim 

under the Lanham Act, Plaintiff fails to state [unfair competition] claim under Florida State law.”); 

Medina v. Dash Films, Inc., No. 15-CV-2551 (KBF), 2016 WL 3906714, at *4 (S.D.N.Y. July 14, 

2016) (“[T]he same First Amendment considerations that limit a cause of action under the Lanham 

Act apply also to a cause of action under New York law.”) (citation & quotations omitted); 

Novalogic, Inc. v. Activision Blizzard, 41 F. Supp. 3d 885, 904 (C.D. Cal. 2013). 

The First Amendment protects Netflix with equal force against Plaintiffs’ federal Lanham 

Act claims and Plaintiffs’ overlapping state law trademark, unfair competition, and FDUTPA 

claims. Counts Four, Five, and Six of Plaintiffs’ Complaint should therefore be dismissed. 

II. PLAINTIFFS’ DEFAMATION CLAIMS FAIL AS A MATTER OF LAW.

Although Plaintiffs engage in group pleading, improperly lumping GEO Group and GEO 

Transport together with single defined term to allege that “GEO” has been defamed, each 

Plaintiff’s defamation claim must be analyzed separately. Separating GEO Group’s and GEO 

Transport’s claims exposes the frivolity of each. 

Under Florida law, a claim for defamation must allege: (1) publication; (2) falsity; (3) that 

the publisher acted with knowledge or reckless disregard as to the falsity on a matter concerning a 

public official, or at least negligently on a matter concerning a private person; (4) actual damages; 

(5) that the statement is defamatory and (6) that the statement is “of and concerning” the plaintiff.

Carroll v. TheStreet.com, Inc., No. 11-CV-81173, 2012 WL 13134547, at *3 (S.D. Fla. May 25, 

2012) (internal citations omitted); see also Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098, 1105 

(Fla. 2008); Thomas v. Jacksonville Television, Inc., 699 So.2d 800, 804 (Fla. 1st DCA 1997). 

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When a plaintiff alleges defamation on the basis of a television program, the Court should review 

the entire episode to place the allegedly defamatory statement in its proper context. See Spilfogel 

v. Fox Broad. Co., No. 09-CV-80813, 2010 WL 11504189, at *4 (S.D. Fla. May 4, 

2010), aff’d, 433 F. App’x 724 (11th Cir. 2011) (finding “after viewing the episode in its totality,” 

that inclusion of plaintiff in COPS reality television show could not have defamatory effect); 

Parekh v. CBS Corp., No. 19-11794, 2020 WL 3400679, at *3 (11th Cir. June 19, 2020) 

(evaluating allegedly defamatory statement in television news program regarding plaintiff “in the 

context of the publication”) (citation & quotations omitted); Byrd v. Hustler Magazine, Inc., 433 

So.2d 593, 595 (Fla. 4th DCA 1983) (“Articles are to be considered with their illustrations; pictures 

are to be viewed with their captions; stories are to be read with their headlines.”) (citation omitted). 

A. There Is No Statement Susceptible to a Defamatory Interpretation 

Regarding GEO Transport In the Two Seconds Its Name Appears. 

Whether a statement “is susceptible to defamatory interpretation [is a question] of law for 

the court,” and can be determined at the motion to dismiss stage. Turner v. Wells, 879 F.3d 1254, 

1262–63 (11th Cir. 2018) (citation omitted); Parekh, 2020 WL 3400679, at *3 (affirming dismissal 

on ground that statement was not defamatory); Keller v. Miami Herald Publ’g Co., 778 F.2d 711, 

714–15 (11th Cir. 1985) (whether statement is reasonably capable of defamatory interpretation “is 

to be made by the trial judge in the first instance”). 

Geo Transport fails to allege how it was defamed. GEO Transport is never mentioned by 

name in Messiah. No character makes any statement about GEO Transport. Instead, GEO 

Transport’s logo is visible once, in passing, for at most two seconds in episode three as part of a 

montage of images showcasing the damage inflicted by a fictitious tornado. (DVD Ex., Disc 5, 

11:17-11:19.) The two-second shot of a bus bearing the GEO Transport name is preceded by 

numerous other shots of the devastation, including the buildings and vehicles (including a yellow 

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school bus), destroyed by the tornado. (See generally DVD Ex., Disc 5.) The only structure in 

the entire town not destroyed by the tornado is the church at the center of the story. 

Moreover, this scene (and episode) occurs before the protagonist is detained and before the 

detention center is even introduced. Even if some viewers were to see or appreciate the GEO 

Transport bus and logo during the fleeting moment they appear on screen amidst the total 

devastation of the town, it would be untethered GEO Transport’s transportation products or 

services. There is thus no conceivable “statement” about GEO Transport that is susceptible to a 

defamatory interpretation in episode three, which primarily concerns a pastor and church that 

appear to be “saved” from their spiritual and actual destruction by al-Masih. 

The only “statement” that could possibly be conveyed through this fleeting image is that 

GEO Transport’s buses (like the yellow school bus, other vehicles, and other objects) may not be 

tornado-proof. Any such statement does not subject GEO Transport to “hatred, distrust, [or] 

ridicule.”9 (Compl. ¶ 52.) “Florida law requires as part of a successful libel suit that the statement 

at issue be reasonably capable of a defamatory interpretation . . . .” Keller 778 F.2d at 714. When 

considered in the context of the full episode, as Florida law requires, there is no defamatory 

statement conveyed about GEO Transport in the sole image of GEO Transport in Messiah. GEO 

Transport’s defamation claim must therefore be dismissed. 

B. There Is No Statement “Of And Concerning” GEO Group. 

 Geo Group’s allegation that Netflix made defamatory statements about GEO Group’s 

treatment of immigrants in the fictional detention facility “[t]hrough the scenes of the facility 

bearing GEO’s name and trademarks . . .” (Compl. ¶ 36), is belied by an actual review of episode 

 

9

 Should Plaintiffs take the position that the shot of a GEO-marked car in the parking lot of the 

detention facility is a display of the GEO Transport (as opposed to the GEO Group) logo, there is 

still no statement susceptible to defamatory interpretation. The seven-second scene merely 

conveys how al-Masih is transported from the local sheriff’s office to an immigration detention 

facility via a (different) van that is prominently marked with the Department of Homeland Security 

logo. There is nothing defamatory about a car bearing the GEO Transport logo outside of an 

immigration detention facility; the exact type of facility that GEO Transport regularly services. 

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four. The majority of the scenes that take place in the detention facility concern either al-Masih’s 

interrogation by the CIA agent (who is not wearing a uniform bearing the GEO name or logo) or 

camera pans of al-Masih sitting quietly alone (where, again, no GEO logo visible). Of the four 

shots that include a GEO Group logo buried in the background, two do not even depict how 

detainees are housed at a detention center. The other two camera shots include both images of 

detained immigrants and the (barely perceptible) GEO Group logo, but make no suggestion or 

statement that the GEO Group, rather than the federal government, is responsible for the conditions 

in which the immigrants are housed.10 

The “of and concerning” prong of defamation requires that the allegedly defamatory 

statement clearly be directed at the plaintiff. Merely mentioning the plaintiff cannot sustain a 

prima facie cause of action. See Thomas v. Jacksonville TV, Inc., 699 So.2d 800, 805 (Fla. 1st 

DCA 1997) (upholding pre-discovery dismissal of complaint with prejudice because plaintiffs 

failed to allege that defamatory statement was “of and concerning” particular plaintiffs). In Jones 

v. Community Newspapers, Inc., for example, a newspaper ran a story about two brothers that were 

indicted for distribution of cocaine. No. 3:05CV240 J16MMH, 2006 WL 2507610, at *1 (M.D. 

Fla. Aug. 29, 2006), aff’d, 223 F. App’x 884 (11th Cir. 2007). The story stated that “the Jones 

brothers also own Jones Trucking on State Road 17 in Palatka.” The wife of one of the Jones 

brothers, and the sole owner of Jones Trucking, sued for defamation, alleging that she was defamed 

by the statement in the news story that implied her business was involved in the cocaine 

distribution. Id. at *1. After evaluating the allegedly defamatory sentence in the context of the 

entire news story, the district court held that the article was not “of and concerning” Jones Trucking. 

Id. at *3. The district court found it relevant that the “newspaper article in question only referred 

 

10 Similarly, to the extent that GEO Group bases its defamation claim on a sign in the background 

of one scene that says “Parking for DHS and GEO” and bears the Department of Homeland 

Security’s logo, not GEO’s logo, that sign only further reinforces that it is the federal government, 

not GEO, in control of the detention center. Moreover, the cropped, zoomed-in image included in 

the Complaint is misleading (Compl. ¶ 33); the actual shot focuses on characters standing outside 

the detention center, and the sign is only barely visible in the background. 

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to Jones Trucking in one sentence” of a twenty-one paragraph article, and that the article focused 

on the arrest and indictment of the cocaine distributors. Id. Further, “[t]here was no inference that 

the business, Jones Trucking, was involved in illegal drug trafficking or acted as a ‘front’ for such 

business.” Id.

Similarly, in McIver v. Tallahassee Democrat, Inc., both an individual (Mr. McIver) and a 

corporation (Southeastern Realty) sued for defamation concerning a newspaper story that reported 

McIver had tried to bribe a city official. 489 So.2d 793, 794 (Fla. 1st DCA 1986). The sole mention 

of Southeastern Realty in the article was in a sentence that identified McIver as the president of 

Southeastern Realty. Id. The court held that “the entire substance of the publication about the 

alleged incident was the presumed unlawful action by the individual McIver,” and consequently 

that there was no defamatory statement “of and concerning” Southeastern Realty. Id.

As in these cases, it is readily apparent that GEO Group cannot fulfill the “of and 

concerning” prong of a prima facie defamation claim. The al-Masih character is initially detained 

in a facility with the sign “Sheriff’s Office” by the Will Mathers character who identifies himself 

as a member of the Department of Homeland Security “Joint Terrorism Task Force.” (DVD Ex., 

Disc 5, 25:32-25:44.) At the beginning of episode four, al-Masih is being transported to a detention 

facility in a van prominently displaying the Department of Homeland Security logo (not the GEO 

Group’s logo). The Eva Geller character who interrogates al-Masih at the facility is repeatedly 

identified as a CIA officer. Before and during the courtroom scenes, other law enforcement 

agencies are depicted as responsible for al-Masih’s detainment and prosecution, including the San 

Antonio police department, a Department of Justice attorney, and an Executive Office of 

Immigration Review Judge. (See generally DVD Ex., Disc 5.) No character ever mentions the 

GEO Group by name or references any private contractor as being responsible for the detention 

facility where al-Masih is held. 

The average viewer would not perceive al-Masih or any of the other detained immigrants 

as being detained by GEO Group, but rather as being detained by the federal government (by the 

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expressly named Central Intelligence Agency, the Department of Homeland Security, and the 

Department of Justice’s Executive Office of Immigration Review). There are no defamatory 

statements “of and concerning” GEO Group,11 see Carroll, 2012 WL 13134547, at *3 (quoting 

Thomas, 699 So.2d at 804, and Geo Group’s defamation claim must therefore be dismissed. 

CONCLUSION 

For the foregoing reasons, Netflix respectfully requests that this Court enter an order 

dismissing Plaintiffs’ complaint in its entirety, with prejudice, and provide such other and further 

relief as the Court deems just and proper. 

REQUEST FOR HEARING 

Pursuant to Local Rule 7.1(b)(2), Netflix respectfully requests oral argument on its 

dismissal motion. Oral argument would be of assistance to the Court due to the multiplicity of 

Plaintiffs’ overlapping claims to be decided upon the dismissal motion and assist the Court in 

specifically identifying the audio-visual components at issue. Netflix anticipates that oral 

argument will necessitate thirty (30) minutes. 

 

11 In the event that the GEO Group’s defamation claim were to survive Netflix’s motion to dismiss, 

discovery will show that there was no malicious intent behind Netflix’s decision to use a variety 

of real-life names and logos to establish a sense of time and place in Messiah. Further, although 

Netflix’s motion to dismiss is not premised on truthfulness, discovery will show that the reality of 

conditions in GEO’s facilities – including those described in the Inspector General’s Report – is 

starkly different from the glossy, country club-like images (all conspicuously without people in 

them) splashed throughout its Complaint. 

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Dated: August 3, 2020 

PRYOR CASHMAN LLP 

Attorneys for Netflix, Inc. 

Ilene S. Farkas (admitted pro hac vice) 

James G. Sammataro 

Michael B. Adelman (admitted pro hac vice) 

201 South Biscayne Boulevard, Suite 2700 

Miami, Florida 33131 

Telephone: (786) 582-3011 

Facsimile: (786) 582-3004 

s/ James G. Sammataro

 Florida Bar No. 520292

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on August 3, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using the CM/ECF system, which will send Notices of 

Electronic Filing to all counsel of record. 

s/ James G. Sammataro

James G. Sammataro 

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