UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ZAKIA RAFIQA SHABAZZ, et. al.,

Plaintiffs,

v.

ICWU CENTER FOR WORKER 

HEALTH & SAFETY 

EDUCATION, et. al.,

Defendants.

Case No. 1:18-cv-339

JUDGE DOUGLAS R. COLE

OPINION AND ORDER

This cause comes before the Court on Defendants International Chemical 

Workers Union (“ICWU”) Council, ICWU Center for Worker Health & Safety 

Education (“ICWU Center” or “the Center”), Frank Cyphers, John Morawetz, and 

Lula Odom’s (collectively “Defendants”) Motions for Summary Judgment (Docs. 54, 

55, 56, 57), filed on February 3, 2020. Plaintiffs United Parents Against Lead 

(“UPAL”) and Zakia Rafiqa Shabazz1 filed an Opposition (Doc. 59) on March 16, 2020

and Defendants replied (Docs. 62, 64, 65, 66) on April 30, 2020.

Also before the Court is Defendants’ Motion to Strike (Doc. 61) the Affidavit of 

Beverly East (“East Affidavit,” Doc. 59-7), which Shabazz had submitted in support 

of her Opposition (Doc. 59) to Defendants’ Motions for Summary Judgment (Docs. 54, 

55, 56, 57). The Motion to Strike has also been fully briefed (Docs. 67, 69). 

1 Unless otherwise stated or clear from context, the term “Shabazz” refers to Plaintiffs 

collectively. 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 1 of 26 PAGEID #: 2604
2

For the reasons stated more fully below, the court GRANTS Defendants’

Motions for Summary Judgment (Docs. 54, 55, 56, 57). As the Court’s holding does 

not turn, one way or the other, on the contents of the East Affidavit, Defendants’ 

Motion to Strike (Doc. 61) is DENIED AS MOOT.

2 Accordingly, the Court 

DISMISSES this action WITH PREJUDICE. 

BACKGROUND

Zakia Shabazz is the Founder and Chief Executive Director of UPAL, a nonprofit organization that supports families and communities impacted by 

environmental hazards. (Am. Compl., Doc. 46, #7563; Pls. Resp. to Defs. Proposed 

Undisputed Facts, Doc. 59-12, #2172).

The ICWU Center was established by the ICWU in 1988 to provide training 

for employers and employees regarding worker health and safety matters. (Pls. Resp. 

to Defs. Proposed Undisputed Facts, Doc. 59-12, #2169).

4 The Center operates on a 

non-profit basis, and most of its activities are supported by grants from the National 

Institute of Environmental Health Sciences (“NIEHS”), which itself is part of the 

National Institute of Health (“NIH”). (Id.). 

2 Because the Court denies Defendants’ Motion to Strike (Doc. 61) as moot, the Court does 

not discuss it at greater length in this Opinion. Consequently, the terms “Motions,” 

“Opposition,” and “Replies” refer solely to briefs related to Defendants’ Motions for Summary 

Judgment, unless otherwise stated.

3 Refers to PAGEID #. 

4 Aside from the ICWU Center and the ICWU Council themselves, all the other defendants 

in this case (including Cyphers, Morawetz, and Odom) are employees of these organizations. 

(Pls. Resp. to Defs. Proposed Undisputed Facts, Doc. 59-12, #2171–72). Because Shabazz does 

not bring any claims against these individual defendants that arise independently of their 

employment duties, in addressing claims against the Center and ICWU Council, the Court 

also addresses the claims against the individual defendants.

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 2 of 26 PAGEID #: 2605
3

NIEHS principally funds the Center through two grants: (1) the Hazardous 

Waste Worker Health and Safety Training Program, and (2) the Hazmat Disaster 

Preparedness Training Program. Together, these grants are known collectively as the 

“Big Grant.” (Id. at #2170). The Center applies for the Big Grant on five-year cycles. 

(Id.). 

Although this litigation arises from two separate events involving Shabazz and 

Defendants, both events revolve around the Big Grant. First, Shabazz asserts various 

claims arising out of the Center’s 2014 Big Grant application. Second, Shabazz brings 

claims related to the Center’s 2016 efforts to obtain permission to use funds from the 

Big Grant to support training sessions in Flint, Michigan. The Court describes each

of these events below.

A. The 2014 Big Grant Application

The first event giving rise to Shabazz’s claims involves the Center’s 2014 Big 

Grant application. On September 9, 2014, defendant Lula Odom, a staff member at 

the Center, sent a mass email to organizations and individuals with whom the Center 

works. (Id. at #2175). The email explained that the Center was applying for the Big 

Grant and requested that the recipients provide letters of support to accompany the 

application. (Id.). Shabazz was one of this email’s recipients. (Id.). 

On September 11, 2014, Shabazz responded to Odom’s email and provided four

letters of support. (Id. at #2176). Two of the letters were from UPAL (one from 

Shabazz herself and one from her husband, who is also affiliated with the 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 3 of 26 PAGEID #: 2606
4

organization), and two were from Shabazz and her husband in their personal 

capacities. (Id.).

On or about November 5, 2014, defendant Frank Cyphers, President of the 

ICWU Council, submitted the Big Grant application on the Center’s behalf. (Id. at 

#2184–85; Opp., Doc. 59, #1564). Included in this application was one of the letters 

Shabazz had emailed Odom on September 11.5 However, the finalized letter included 

in the Big Grant application differed from Shabazz’s original in a few ways. First, the 

finalized version made certain non-substantive adjustments to the letter’s spelling 

and terminology.6 And, second, whereas Shabazz’s original letter included an 

electronic signature, with her name presented in a script-style font, the finalized 

letter included a handwritten signature (sometimes referred to as a “wet ink 

signature”). (Compare Original Shabazz Ltr., Doc. 54-6, #1135 with Submitted 

Shabazz Ltr., Doc. 46, #771).

Shabazz agrees that the finalized letter’s content reflected her position at the 

time it was submitted. (Shabazz April Depo. Excerpts, Doc. 54-8, #1208–09). Nonetheless, 

she argues that the Defendants “forged” her handwritten signature on the letter. 

(Shabazz Sept. Depo. Excerpts, Doc. 54-7, #1161; Opp., Doc. 59, #1539). For their part, 

5 It is unclear if the other three letters were used in the application. If they were used, they 

are not the subject of any claims in this litigation.

6 Specifically, the finalized version of the letter included the following non-substantive 

changes: (1) “ICWUC Center” is changed to “ICWU Center;” (2) “1st” is changed to “First;” 

and (3) “1st Aid/CPR” is changed to “First Aid/CPR-AED.” (Compare Original Shabazz Ltr., 

Doc. 54-6, #1135 with Submitted Shabazz Ltr., Doc. 46, #771). 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 4 of 26 PAGEID #: 2607
5

Defendants respond that they do not know who affixed the wet ink signature to the 

finalized letter. (Mot., Doc. 54-1, #1000–02).

Although the Center submitted the Big Grant application in 2014, the alleged 

forgery did not come to light until Shabazz commenced litigation in 2017 to pursue 

her other claims (described in further detail below). (Pls. Resp. to Defs. Proposed 

Undisputed Facts, Doc. 59-12, #2199). After Shabazz voluntarily moved to dismiss 

her original case, she filed a new complaint (Doc. 1-2) (which she later amended (see

Doc. 46)) against Defendants that raised several claims related to the alleged 

forgery.7 Specifically, Shabazz alleges that the forgery constituted: (1) invasion of 

privacy under Ohio common law; (2) a violation of Ohio’s Deceptive Trade Practices 

Act (ODTPA); (3) false endorsement under the Lanham Act; (4) fraud under Ohio 

common law; and (5) civil conspiracy. (Am. Compl., Doc. 46). 

B. The 2016 Flint Training Session

Shabazz also brings claims related to the Center’s 2016 efforts to obtain special 

permission from NIEHS to use funds from the Big Grant to conduct training sessions 

in Flint, Michigan. 

7 Shabazz filed her original Complaint pro se in Hamilton County Court of Common Pleas on 

January 10, 2017. (A1700121 Compl., Doc. 10-15, #361). That Complaint only brought claims 

arising from the 2016 events, described in the next section of this opinion. (Id.). After Shabazz 

retained counsel, she moved to dismiss that original case without prejudice on February 1, 

2018. (A1700121 Mot. to Dismiss, Doc. 10-16, #368). She subsequently filed the first 

Complaint (Doc. 1-2) in this case on April 2, 2018, which included claims related to the 

allegedly forged signature. Shabazz filed her Amended Complaint (Doc. 46) on December 24, 

2019.

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 5 of 26 PAGEID #: 2608
6

In late 2015, it become public knowledge that the city of Flint’s water supply 

had been contaminated by lead. (Pls. Resp. to Def. Proposed Undisputed Facts, Doc. 

59-12, #2187). Employees at the Center began doing research into the issue and 

planning a potential training program in Flint. (Id. at #2189–90). On January 27, 

2016, Shabazz contacted Odom regarding the situation in Flint, which led to a call 

that day between Center employees and Shabazz in which the water crisis was 

discussed. (Id. at #2191). On January 31, 2016, Shabazz emailed the Center to 

provide materials “to aid in the development of [a] Lead Poisoning Curriculum.” (Id. 

at #2192). The Center did not ultimately use any of these materials in planning its 

training session. (Id. at #2193). 

On February 4, 2016, the Center’s Director, defendant John Morawetz, emailed 

the Center’s contact at NIEHS regarding the situation in Flint. (Id. at #2193). 

Director Morawetz’s email requested permission to use funds from the Big Grant to 

support “Train the Trainer” sessions in the Flint area. (Id.). In explaining the Center’s 

plan, Morawetz stated: 

If the [Train the Trainer] class has a sufficient attendance, we will

extend it to three days to permit all new trainers to have time to prepare 

and present modules. We are in communication with CBTU [(Coalition 

of Black Trade Unionists)] chapters in Detroit, Lansing and the Detroit 

Fire Academy. The Richmond, Virginia CBTU CARAT [(Community 

Action and Response Against Toxics)]8 Team is headed by Zakia 

Shabazz, the Director, [UPAL] and her letter of support was in our 

competitive application. 

8 Although “CBTU primarily provides services for union-represented employees, it has 

established Community Action and Response Against Toxics (CARAT) Teams for many of its 

local chapters to provide services primarily in minority communities regarding toxic 

substances.” (Pls. Resp. to Def. Proposed Undisputed Facts, Doc. 59-12, #2174).

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 6 of 26 PAGEID #: 2609
7

(Id.). 

On February 16, 2016, NIEHS granted the Center’s request to use funds from 

the Big Grant to support its training sessions in the Flint area. (Id. at #2195–96). The 

training session was held in March 2016. (Id. at #2196). Shabazz was not involved in 

this training session, either as an instructor or as an attendee. (Id.). 

Around May 2016, NIEHS issued its annual Director’s Report. (Id.). The 

Report described the Center’s training sessions in Flint earlier that year, stating, in 

pertinent part:

[ICWU] Council has been funded to conduct lead awareness and ‘train 

the trainer’ classes in the Flint Michigan area. The three-day class will 

permit all new trainers to have time to prepare and present lead 

awareness modules. They are working with [CBTU] chapters in Detroit, 

Flint, and Lansing, as well as the Detroit Fire Academy. The CBTU 

Team is headed by Zakia Shabazz, the Director of United Parents 

Against Lead. 

(Id. (emphasis added)). Both sides agree the Report’s statement that Zakia Shabazz 

“headed” the CBTU Team at the Center’s Flint training session is inaccurate. (Id. at 

#2197). However, the parties dispute how this error found its way into the NIEHS 

Director’s Report. 

Shabazz argues, in brief, that the error in the Director’s Report arose from 

Defendants’ deliberate (and successful) effort to mislead NIEHS to believe that 

Shabazz would lead the Flint training session to gain NIEHS approval to use Big 

Grant funds. As evidence, she points to what ICWU Center Director Morawetz said 

in his February 4 email to NIEHS (quoted above). In particular, Shabazz says that 

Morawetz’s statement that she was heading the Richmond CBTU CARAT Team is 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 7 of 26 PAGEID #: 2610
8

what gave NIEHS the false impression that she was involved in the training program. 

(Opp., Doc. 59, #1549–51). Defendants, by contrast, respond that the Report was 

prepared by an unknown writer at NIEHS, who simply misinterpreted Morawetz’s 

February 4 email. (Center’s Mot., Doc. 54-1, #1005). Thus, in Defendants’ view, the 

Report’s reference to Shabazz’s role was little more than an innocent mistake and, 

moreover, one which was totally beyond Defendants’ control, as the Center (a private 

organization) and NIEHS (a government agency) are separate entities. 

Shabazz discovered the error in the Report when she conducted an internet 

search on herself in August 2016. (Pls. Resp. to Defs. Proposed Undisputed Facts, 

Doc. 59-12, #2198). Several months later, in January 2017, she sued the Defendants. 

(Id. at #2198–99). Shabazz’s claims arising from Defendants’ alleged use of her name 

to obtain funding for the Flint training session include: (1) violation of the ODPTA; 

(2) false endorsement under the Lanham Act; (3) invasion of privacy under Ohio 

common law; and (4) civil conspiracy.

LEGAL STANDARD

Defendants have all moved for summary judgment. (Docs. 54, 55, 56, 57). In 

evaluating their Motions, the Court bears in mind that “[t]he ‘party seeking summary 

judgment always bears the initial responsibility of informing the district court of the 

basis for its motion and identifying those portions’ of the record which demonstrate 

‘the absence of a genuine issue of material fact.’” See, e.g., Rudolph v. Allstate Ins. 

Co., No. 2:18-cv-1743, 2020 WL 4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 8 of 26 PAGEID #: 2611
9

But the non-moving party cannot defeat a motion for summary judgment 

merely by pointing to any factual dispute. As the Sixth Circuit has explained, “[t]he 

mere existence of some alleged factual dispute between the parties will not defeat an 

otherwise properly supported motion for summary judgment; the requirement is that 

there be no genuine issue of material fact.” Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 

690, 697 (6th Cir. 2020) (bracket omitted) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986)).

In sum, the nonmoving party, at this stage, must present some “sufficient 

disagreement” that would necessitate submission to a jury. See Moore v. Phillip 

Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251–

52). In making that determination, though, the Court must view the evidence in the 

light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986); Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 

(6th Cir. 1995) (“In arriving at a resolution, the court must afford all reasonable 

inferences, and construe the evidence in the light most favorable to the nonmoving 

party.”).

LAW & ANALYSIS

In her Amended Complaint (Doc. 46), Shabazz asserts five claims: (1) invasion 

of privacy under Ohio common law; (2) violation of ODTPA; (3) false endorsement 

under the Lanham Act; (4) fraud under Ohio common law; and (5) civil conspiracy. 

The Court addresses each of the five claims below, although it addresses the ODTPA 

and Lanham Act claims jointly, as the same framework applies to each. Papa Ads, 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 9 of 26 PAGEID #: 2612
10

LLC v. Gatehouse Media, Inc., No. 5:10-cv-203, 2011 WL 13186119, at *4 n.11 (N.D. 

Ohio Mar. 22, 2011). 

A. Shabazz’s Invasion Of Privacy Claim Fails As A Matter Of Law.

In the first count of her Complaint, Shabazz alleges that Defendants violated 

her rights under Ohio’s common law right of publicity, which is a subspecies of Ohio’s 

invasion of privacy tort. (Am. Compl., Doc. 46, #762). “A defendant is subject to 

liability under the Ohio common-law right of publicity tort when he ‘appropriates to 

his own use or benefit the names or likeness of another.’” Roe v. Amazon, 714 F. App’x 

565, 568 (6th Cir. 2017) (citing Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 

454, ¶ 1 of syllabus (Ohio 1976), rev’d on other grounds, 433 U.S. 562 (1977)). In order 

to prevail on this claim, in addition to showing misappropriation, the plaintiff “must 

demonstrate that [his or her] name or likeness has value.” Id. (citing Zacchini, 351 

N.E.2d at 458 n.4).

Shabazz alleges that Defendants violated her right of publicity in two distinct 

ways: first, by allegedly forging her signature in her letter of support for the Big 

Grant; and second, by Defendants’ use of her name to obtain funding for the Center’s 

Flint training sessions. The Court addresses each of these claims in succession. 

Shabazz first alleges that the Defendants violated her right of publicity by 

forging her signature on the letter of support in the Big Grant application. As Shabazz 

explains, “[t]he forgery of the signature of another is a recognized variant of the tort 

known generally as invasion of privacy. More specifically, forgery amounts to the 

appropriation of the name or likeness of another.” (Opp., Doc. 59, #1547 (quoting 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 10 of 26 PAGEID #: 2613
11

James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 122 (Ohio Ct. App. 2006)). Thus, 

Shabazz argues, because there remains a dispute of fact as to whether Defendants 

signed her name on the letter, the case must proceed to a jury. (Opp., Doc. 59, #1549).

While Shabazz is correct that the forgery of another’s signature can constitute 

invasion of privacy under Ohio law, see James, 855 N.E.2d at 122, she has failed to 

create a genuine dispute as to whether her signature was, in fact, forged. Central to 

the Court’s analysis here is the issue of consent. As the Supreme Court of Ohio has 

explained, “[c]onsent is generally an absolute defense to an invasion of privacy claim.” 

Lundsford v. Sterile of Ohio, LLC, 165 N.E.3d 245, 254 (Ohio 2020) (citing 

Restatement (Third) of Employment § 7.06 (2015)). Thus, if Defendants can show that 

they had Shabazz’s consent to use her signature, her invasion of privacy claim with 

regard to the alleged “forgery” fails as a matter of law.

Here, the parties agree that Shabazz emailed a letter to the Center on 

September 11, 2014. (Shabazz Sept. Depo. Excerpts, Doc. 54-7, #1160). This letter 

was identical to the one that the Center ultimately submitted in the Big Grant 

application aside from (1) a few minor, non-substantive changes, and (2) the form of 

the signature. (Compare Original Shabazz Ltr., Doc. 54-6, #1135 with Submitted 

Shabazz Ltr., Doc. 46, #771). Whereas the original letter included an electronic 

signature with Shabazz’s name written in a script-style font, the finalized letter 

included the handwritten signature at the center of this litigation. (Id.). Thus, 

Shabazz indisputably consented to the use of her electronic signature for the purposes 

of the letter of support. The only question that remains is whether the distinction 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 11 of 26 PAGEID #: 2614
12

between an electronic signature and a handwritten one is salient for the purposes of 

an invasion of privacy claim. In the Court’s view, it is not. 

Rather than drawing strong distinctions between electronic signatures and 

their traditional handwritten counterparts, Ohio law generally recognizes both forms 

of signature as equally effective. In Ohio v. Martin, the Eighth Appellate District 

considered whether Ohio’s law requiring that a grand jury foreman or deputy 

foreman sign an indictment could be satisfied by way of electronic signature. The 

Court observed that

the use of electronic signatures has become common place in the law. 

Indeed, the Ohio Uniform Electronic Transaction Act at R.C. 1306.06(A) 

provides that “a record or signature may not be denied legal effect or

enforceability because it is in electronic form.” The act further provides 

that “[i]f a law requires a signature, an electronic signature satisfies the 

law.” R.C. 1306.06(D). Thus, under the act, the requirement ... that 

either grand jury foreman or deputy foreman sign the indictment is 

satisfied by his or her electronic signature. 

Ohio v. Martin, No. 106038, 2018 WL 2149730, at *6 (Ohio Ct. App. May 10, 2018); 

see also Jones v. U-Haul Co. of Mass & Ohio, 16 F. Supp. 3d 922, 934 (S.D. Ohio 2014) 

(stating that “[e]lectronic signatures are binding under Ohio law”); Stephens v. 

Frisch’s Big Boy Rests., No. 1:19-cv-954, 2020 WL 4754682, at *3 (S.D. Ohio July 30, 

2020). Accordingly, as a general rule, wet signatures and electronic signatures are 

both equally valid and effective under Ohio law.9

9 The Court emphasizes that this general rule is just that: a general rule. But Ohio law leaves 

open the possibility that, in some circumstances, a signature in a specific form may be 

required. See, e.g., Ohio Admin. Code 4121-3-18(B)(2) (stating that “district hearing officers, 

staff hearing officers and the commission will accept a written statement from a party, signed 

in handwriting[.]” (emphasis added)). But Shabazz has not identified, and the Court is not 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 12 of 26 PAGEID #: 2615
13

Alternatively, Shabazz might argue that, even if Ohio law does not distinguish 

between electronic and wet signatures, another source of law or set of rules might, 

which may make the substitution of the latter for the former in the letter of support 

an appropriate basis for an invasion of privacy claim. For example, assume for a 

moment that the NIEHS would accept only support letters with wet ink signatures. 

If Shabazz provided a letter with an electronic signature, knowing that the Center 

could not rely on it for support, and the Center then changed that to a wet ink 

signature, so that it could rely on the letter, perhaps Shabazz could somehow craft an 

invasion of privacy claim out of that. And, when the Court explored that issue at oral 

argument, that is the direction Shabazz’s attorney seemed to go. But when asked to 

point to any rule or regulation supporting the notion that the form of the signature 

mattered, the attorney could not do so. Rather, he just “thought” that “may” be the 

case. The summary judgment stage of litigation, though, is not an appropriate time 

to speculate what the case may be, but rather to present the evidence as to what the 

case is. In any event, the Court has found nothing that suggests that the form of the 

signature on support letters (i.e., whether electronic or wet ink) matters one whit in 

terms of the NIEHS grant application program.

Thus, Shabazz has identified nothing under Ohio law or NIEHS rules that 

suggest there is a meaningful distinction between wet and electronic signatures. 

Accordingly, Shabazz’s invasion of privacy claim cannot proceed, at least with regard 

aware of, any rule indicating that this case is a special circumstance which would mandate a 

departure from the general rule. Accordingly, the Court applies the general rule here.

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 13 of 26 PAGEID #: 2616
14

to the allegedly forged letter of support. As previously explained: consent is fatal to 

an invasion of privacy claim, and Shabazz consented to the use of her signature to 

support the Big Grant application when she emailed her letter to the Center. The fact 

that the finalized letter substituted a wet signature for the electronic signature is 

irrelevant. Under Ohio law and NIEHS grant application rules, a signature is,

generally speaking, a signature. Even assuming that the Defendants wrote Shabazz’s 

name on the letter themselves (which has not been proven), for the purposes of 

Shabazz’s invasion of privacy claim, that change to the form of signature is no 

different than adjusting the letter’s font style or formatting. 

In light of this finding, the Court grants Defendants’ Motions for Summary 

Judgment with regard to Shabazz’s invasion of privacy claim arising from the use of 

her signature in the Big Grant letter of support. 

Shabazz next argues that Defendants are liable for invasion of privacy due to 

their use of her name in connection with their efforts to obtain funding for their 

training session in Flint. (Opp., Doc. 59, #1549–54). As evidence, Shabazz points to 

ICWU Center Director Morawetz’s February 4, 2016, email to NIEHS, in which he 

stated that the Center was “in communication with CBTU chapters in Detroit, 

Lansing, and the Detroit Fire Academy. The Richmond, Virginia CBTU CARAT 

Team is headed by Zakia Shabazz, the Director, [UPAL] and her letter of support was 

in our competitive application.” (Center’s Mot., Doc. 54-1, #1004 (emphasis added)).10

10 During oral argument, Shabazz’s counsel also suggested that there were other 

communications between the Center and NIEHS in which the Center misrepresented to 

NIEHS that Shabazz would conduct the Flint training sessions. However, he also stated that 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 14 of 26 PAGEID #: 2617
15

Under Ohio law, a right of publicity claim cannot proceed where the alleged 

use of the plaintiff’s name or likeness was “mere[ly] incidental.” Fox v. Nationwide 

Mut. Ins. Co., 117 N.E.3d 121, 145 (Ohio Ct. App. 2018) (citing Vinci v. Am. Can. Co.,

591 N.E.2d 793 (Ohio Ct. App. 1990)). For example, in Vinci, an Olympic weightlifter 

“brought a class action on behalf of himself and other Olympic athletes whose names 

and likenesses were used on a series of disposable drinking cups promoted by a 

partnership between the Minute Maid Corporation and the United States Olympic 

Committee.” ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 929 (6th Cir. 2003) (citing 

Vinci v. Am. Can Co., 459 N.E.2d 507 (1984 Ohio)). The court dismissed this alleged 

invasion of privacy as “merely incidental,” noting that the “reference[s] to the athletes 

and their accomplishments was purely informational; there was no implication that 

the athletes used, supported, or promoted the product.” Vinci, 591 N.E.2d at 794.

Thus, under Ohio law, the guiding inquiry in evaluating an “incidental” defense to 

invasion of privacy is whether a plaintiff’s name is used for informational purposes, 

he had no direct evidence of these interactions. Instead, he appears to argue that the Court 

can infer such interactions took place based the erroneous NIEHS Director’s Report.

In the Court’s view, the Director’s Report cannot bear the weight Shabazz ascribes to 

it. As the non-movant in this case, the Court is required to make all reasonable inferences in 

Shabazz’s favor. Mangum v. Repp, 674 F. App’x 531, 536 (6th Cir. 2017). But the inference 

Shabazz attempts to make here is not reasonable, and thus the Court cannot consider it at 

the summary judgment stage. Stackhouse v. Forward Air, Inc., No. 2:07-cv-1241, 2009 WL 

778319, at *8 (S.D. Ohio March 20, 2009).

Shabazz has had ample opportunity to uncover evidence that Defendants used her 

name in their external communications regarding the Flint training sessions. And, thus far, 

the only direct evidence she has uncovered is the February 4 Morawetz email. At this late 

stage, the argument that there were other deceptive contacts between Defendants and 

NIEHS that have continued to evade discovery entirely is simply not reasonable. 

Accordingly, while the Court considers the Morawetz email for the purposes of 

evaluating Shabazz’s claims, it declines her invitation to infer that there were other relevant 

communications between the Center and NIEHS that the record has yet to reveal.

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 15 of 26 PAGEID #: 2618
16

which is not actionable, or instead to create the impression of the plaintiff’s 

endorsement or support of a given position, which is. 

Here, there is no genuine dispute that Morawetz’s use of Shabazz’s name was 

purely informational. As the Center states, at the time Morawetz sent the email, its 

staff “was engaged in various matters to prepare for a possible Flint training, such as 

soliciting possible attendees and materials from various ‘resources.’” (Center’s Reply, 

Doc. 62, #2250). This explains Morawetz’s references to CBTU chapters in Detroit, 

Lansing, and the Detroit Fire Academy, who Morawetz has stated were “local 

organizations that [would potentially] participate in [the] lead training.” (Morawetz 

June Depo. Excerpts, Doc. 59-3, #1900). Through the Richmond CARAT CBTU Team, 

Shabazz had a connection to these organizations. Because NIEHS was presumably 

familiar with Shabazz through the Center’s prior Big Grant application, she was a 

helpful point of reference for Morawetz to describe who these other organizations in 

Michigan were. 

Thus, the Court finds that, to the extent that Defendants used Shabazz’s name 

in their efforts to obtain funding for the Flint training session, this use was merely 

incidental and accordingly not actionable as an invasion of privacy. 

B. Defendants Are Not Liable Under ODTPA Or The Lanham Act.

Shabazz next brings claims under ODTPA and the Lanham Act. Because “the 

same legal analysis is employed to resolve Lanham Act claims and [ODTPA] claims,” 

the Court only applies a Lanham Act analysis here. Papa Ads, 2011 WL 13186119, 

at *4 n.11 (internal citations omitted).

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 16 of 26 PAGEID #: 2619
17

Section 43(a) of the Lanham Act, codified at 15 U.S.C. § 1125(a), authorizes a 

civil action against, in pertinent part,

[a]ny person who, on or in connection with any goods or services ... uses 

in commerce any word, term, name, symbol, or device, or any 

combination thereof ... which [ ] is likely to cause confusion, or to cause 

mistake, or to deceive as to the ... affiliation, connection, or association 

of such person with another person, or as to the origin, sponsorship, or 

approval of his or her goods, services, or commercial activities by 

another person[.]

15 U.S.C. § 1125(a). Section 43(a) of the Lanham Act has been used to combat a wide 

variety of allegedly anticompetitive trade practices, including more traditional forms 

of trademark infringement, see, e.g. Quabaug Rubber Co. v. Fabiano Shoe Co., 567 

F.2d 154 (1st Cir. 1977); infringement of trade dress, see, e.g., Craft Smith, LLC v. EC 

Design, LLC, 969 F.3d 1092, 1106 (10th Cir. 2020); and—as Shabazz alleges is the 

case here—false celebrity endorsement. ETW Corp., 332 F.3d at 925. 

As the Sixth Circuit has explained, in celebrity endorsement cases, “the ‘mark’ 

at issue is the plaintiff’s identity,” and thus liability under § 43(a) arises when the 

plaintiff’s identity “is connected with a product or service in such a way that 

consumers are likely to be misled about the celebrity’s sponsorship or approval of the 

product or service.” Id. at 925–26. For example, in White v. Samsung Electronics

America, Inc., the Ninth Circuit found that § 43(a) could support a false endorsement 

claim where a commercial for electronics featured a robot bearing a resemblance to 

the plaintiff, television celebrity Vanna White. 971 F.2d 1395 (9th Cir. 1992). 

Similarly, in Allen v. Nat’l Video, Inc., the Southern District of New York granted 

summary judgment to the plaintiff, famed director Woody Allen, where the defendant 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 17 of 26 PAGEID #: 2620
18

had hired a Woody Allen impersonator for its ad campaign. 610 F. Supp. 612 

(S.D.N.Y. 1985).

Here, Shabazz alleges that the defendants are liable for false endorsement on 

two grounds. First, she claims that Defendants are liable for false endorsement for 

allegedly forging her signature on the Big Grant letter of support. As she explains, 

“the issue at hand [is] forgery—defendants simply did not have Ms. Shabazz’s 

authorization, consent, or approval to sign her name to the letter, with the intention 

of passing it off as the authentic signature of Zakia Shabazz ... in order to obtain 

federal grant funding.” (Opp., Doc. 59, #1559–60). 

The problem for Shabazz is that, even if the wet signature on the finalized 

letter was not hers, the Lanham Act only protects against the use of an individual’s

identity in a way that misleads consumers about that individual’s approval or 

sponsorship of a given product or service. Where a plaintiff did, in fact, grant their 

sponsorship or approval, a false endorsement claim under § 43(a) cannot succeed. L.S. 

Heath & Sons, Inc. v AT&T Info. Sys., 9 F.3d 561, 575 (7th Cir. 1993) (holding that 

the plaintiff’s “false endorsement claim fail[ed] ... because the endorsement was not 

‘false’—[the plaintiff] did give its endorsement and approved the ad”); see also

Klayman v. Judicial Watch, Inc., 629 F. Supp. 2d 112, 149 (D.D.C. 2009). During her 

deposition, Shabazz was shown a copy of the finalized letter of support. She was then 

asked, “[i]s there anything in [the letter] that’s in front of you, other than your 

signature on it, that does not represent UPAL’s position? Other than your signature.” 

Shabazz responded that at “[t]he time that it was submitted, those things would have 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 18 of 26 PAGEID #: 2621
19

certainly been true[.]”11 (Shabazz April Depo Excerpts, Doc. 54-8, #1208–9). Thus, 

there is no disputing the fact that Shabazz endorsed the contents of the letter 

supporting the Center’s application for the Big Grant. 

As noted, though, perhaps if the form of the signature was significant for some 

reason—for example, pursuant to Ohio law or NIEHS rules—a different result may 

follow. But this Court already considered such an argument in the previous section, 

and found nothing under Ohio law or NIEHS rules suggesting that the difference 

between electronic and wet signatures is legally salient. Given Shabazz’s concession 

that she agrees with the entirety of the contents in the letter attributed to her, 

coupled with her failure to show that the form of her signature mattered in any way, 

the Court rejects her attempt to rely on the allegedly “forged” signature as the basis 

for a false endorsement claim. 

Shabazz also argues that Defendants are liable for false endorsement by 

misrepresenting to NIEHS that Shabazz would be involved in conducting the Center’s 

lead training session in Flint. (Am. Compl., Doc. 46, #765). As evidence, Shabazz 

again points to Morawetz’s February 4 email to NIEHS. Although Shabazz concedes 

that Morewetz’s email was “technically accurate,” it was “misleading, and certainly 

11 Shabazz’s full statement was: at “[t]he time that it was submitted, those things would have 

certainly been true, but they would not have been intended to support any kind of lead 

training in Flint, Michigan or anywhere else.” (Shabazz April Depo. Excerpts, Doc. 54-8, 

#1208–9). However, it goes without saying that Shabazz’s letter would not have been 

intended to support lead training in Flint because, as the Center correctly explains, “at that 

time in 2014, no one knew anything about a Flint lead-contamination problem.” (Center’s 

Mot,, 54-1, #1001). 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 19 of 26 PAGEID #: 2622
20

allows a fact finder to reasonably conclude that Defendants engaged in conduct that 

violates the Lanham Act.” (Opp., Doc. 59, #1560). 

Shabazz is correct that a statement, even if technically true, may give rise to a

§ 43(a) claim if it is nonetheless “likely to cause confusion[] or to cause mistake” in 

the minds of consumers. 15 U.S.C. § 1125(a); see also U-Haul Int’l v. Kresch, 904 F. 

Supp. 595, 599–600 (E.D. Mich. 1995). Consequently, “in the ordinary false 

endorsement claim, the controlling issue is likelihood of confusion,” which courts 

generally analyze pursuant to a multi-factor balancing test. ETW Corp., 332 F.3d at 

926.

However, in this case the Court finds the multi-factor balancing test is 

unnecessary, because, even if Shabazz could prevail in demonstrating likelihood of 

confusion, the Defendants’ conduct would nonetheless be protected under the 

Lanham Act’s fair use defense. 

The fair use defense comes into play in situations where a plaintiff holds a 

trademark on a given word or phrase, but the word or phrase also retains an 

underlying descriptive meaning. A trademark holder “gets an exclusive right to use 

the mark in the way associated with his goods, but ownership of the original, 

descriptive sense of the word remains public.” Sazerac Brands, LLC v. Peristyle, LLC, 

892 F.3d 853, 857 (6th Cir. 2018). Stated differently, the fair use defense applies when 

“the use of the name, term, or device charged to be an infringement is a use, otherwise 

than as a mark, ... of a term of device which is descriptive and used fairly and in good 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 20 of 26 PAGEID #: 2623
21

faith only to describe the goods or services of such party, or their geographic origin.” 

15 U.S.C § 1115(b)(4). 

Thus, a defendant seeking to assert a fair use defense under the Lanham Act 

must prove two elements. He or she must (1) “use the label in a descriptive or 

geographic sense,” and (2) “do so fairly and in good faith.” Sazerac, 892 F.3d at 857. 

The Sixth Circuit has also emphasized, that “as an affirmative defense, fair use 

applies even when the plaintiff has met his own burden,” and thus evidence of some 

degree of confusion is not dispositive in the fair use analysis. Id. 

For example, in ETW Corp., the Sixth Circuit held that the use of Tiger Woods’s 

name on an envelope containing an artist’s picture of him was protected under the 

fair use defense. The Court explained that Woods’s name “was used only to describe 

the content of the print, and all of the materials accompanying the print clearly 

identified the artist himself as the source of the print.” Hensley Mfg. v. ProPride Inc., 

579 F.3d 603, 612 (6th Cir. 2009) (citing ETW Corp., 332 F.3d at 920–21). Similarly, 

in Hensley, the Sixth Circuit applied the fair use doctrine when the plaintiff, a trailer 

hitch manufacturer, sued one of its competitors after the competitor hired the 

plaintiff’s founder and namesake to design a new trailer hitch. Id. at 607. In 

marketing the new hitch, the competitor advertised the designer’s involvement, to 

the chagrin of the plaintiff manufacturer that still bore the designer’s name. Id. In 

finding fair use applied, the Sixth Circuit explained that the defendant’s 

advertisements do not use the name ‘Hensley’ in the trademark sense; 

they use Jim Hensley’s name only to identify him as a designer of trailer 

hitches (including the ProPride 3P Hitch), describe his relationship to 

ProPride, and tell the story behind his success. ... Because ... ProPride’s

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 21 of 26 PAGEID #: 2624
22

uses of Jim Hensley’s name are descriptive, and because Hensley 

Manufacturing did not allege facts from which any inference of bad faith 

can be drawn, we hold that the fair use defense applies in this case as a 

matter of law.

Id. at 612. 

Thus, as a practical matter, the analysis required under the fair use defense to 

false endorsement closely parallels the analysis required under the “incidental” 

defense to invasion of privacy. Perhaps unsurprisingly, then, the Court’s holding on 

this issue is also the same. In his February 4 email, ICWU Center Director Morawetz 

sought to obtain NIEHS funding for a Flint training session by explaining steps the 

Center had already taken to prepare for the session. (Center Reply, Doc. 62, #2250). 

This included discussing local organizations Defendants had already contacted, and 

Shabazz—a party with whom NIEHS was already familiar—was simply a helpful 

point of reference to explain who these organizations were. Moreover, nowhere does 

Morawetz suggest Shabazz sponsored or supported the planned training session, 

underscoring Defendants’ good faith in their communications with NIEHS. 

Accordingly, the Court concludes that the reference to Shabazz and UPAL in the 

February 4 email to NIEHS is protected under the fair use doctrine.12

C. Defendants Are Not Liable for Common Law Fraud.

Next, the Court turns to Shabazz’s fraudulent misrepresentation claim. In 

Ohio, the elements of fraud are: 

12 Although the unknown writer of the Director’s Report at NIEHS ultimately was confused 

by the reference to Shabazz in the February 4 email, that is not dispositive in the fair use 

analysis. Sazerac, 892 F.3d at 857 (stating that fair use “tolerates some degree of confusion” 

(internal quotation marks and modifications omitted)). 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 22 of 26 PAGEID #: 2625
23

(1) a representation or, where there is a duty to disclose, concealment of 

fact, (2) which is material to the transaction at hand, (3) made falsely, 

with knowledge of its falsity, or with such utter disregard and 

recklessness as to whether it is true or false that knowledge may be 

inferred, (4) with the intent of misleading another into relying on it, 

(5) justifiable reliance upon the representation or concealment, and (6) a 

resulting injury proximate[ly] caused by the reliance.

HBA Motors, LLC v. Brigante, No. 1:21-cv-624, 2021 WL 4709733, at *3 (S.D. Ohio 

Oct. 7, 2021) (citing Aetna Cas. & Sur. Co. v. Leahey Const. Co., 219 F.3d 519, 539 

(6th Cir. 2000)). 

Here, the basis of Shabazz’s fraud claim is somewhat unclear. In her Amended 

Complaint, she argues that the Defendants are liable because her 2014 letter of 

support was used to apply for a different grant than the one she understood it would 

be used for. (Am. Compl., Doc. 46, #766, ¶¶ 60–64). However, in her Opposition to 

Defendants’ Motions to Dismiss, Shabazz’s theory appears to have changed. (Opp., 

Doc. 59, #1556–57). Shabazz now alleges that liability arises from (1) the alleged 

forgery of Shabazz’s name on the 2014 letter of support, (id.), and (2) the alleged use 

of Shabazz’s name “for the purpose of obtaining funding for the lead awareness 

training in Flint.” (Id. at #1557). Her briefing does not mention the theory that 

Shabazz’s letter of support was used to apply for a different grant than originally 

intended. (Id. at #1556–57).

That Shabazz’s theory has completely changed is itself fatal to her fraud claim. 

Fed. R. Civ. P. 8 “requires that a complaint give a defendant fair notice of a claim and 

its supporting facts.” Marzoula v. Cont’l Tire N. Am., No. 5:05-cv-2339, 2006 WL 

2345529, at *3 (N.D. Ohio Aug. 11, 2006) (citing EEOC v. J.H. Routh Packing Co., 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 23 of 26 PAGEID #: 2626
24

246 F.3d 850, 854 (6th Cir. 2001)). Consequently, as the Sixth Circuit has explained, 

a “[p]laintiff cannot change its theory of the case in an effort to avoid summary 

judgment after Defendant moves for summary judgment.” Vaughn v. City of Lebanon,

18 F. App’x 252 (6th Cir. 2001) (emphasis original). Here, Shabazz attempts to do just 

that, and accordingly, she has not offered any arguments in opposition to the 

Defendants’ Motions for Summary Judgment that the Court is able to consider.

But, even if the Court could consider Shabazz’s fraud claim as asserted in her 

Opposition, Shabazz would not prevail. Under Ohio law, “a party is unable to 

maintain an action for fraud where the fraudulent representations were not made 

directly to him to induce him to act on them in matters affecting his own interests.” 

Floyd v. Bank of Am., N.A., No. 1:13-cv-2072, 2014 WL 3732591, at *9 (N.D. Ohio 

July 25, 2014) (citing Baddour v. Fox, No. 03CA–77, 2004 WL 1327925, at *4 (Ohio 

Ct. App. June 4, 2004)); see also Moses v. Sterling Commerce Am., Inc., No. 02A P–

161, 2002 WL 1938575, at *3 (Ohio Ct. App. Aug. 15, 2002) (“The elements of fraud 

must be directed against the alleged victim.”).

Although Shabazz describes two alleged incidents of fraud in her Opposition, 

neither of these incidents, even if true, would constitute fraud against her. First, the 

allegedly forged signature in the letter of support would have been designed to 

deceive NIEHS as to Shabazz’s endorsement. It would not have been designed to 

deceive Shabazz or induce her into any sort of action. Second, the February 4 email 

to NIEHS regarding the Flint training session, even if it had used Shabazz’s name in 

such a way as to give the false impression she would lead the session, similarly fails 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 24 of 26 PAGEID #: 2627
25

because this would have constituted fraud on NIEHS. In short, even if the Court could 

consider Shabazz’s fraud claim as described in her Opposition, this claim would fail 

because the fraud in question would not have been directed against her.

D. Defendants Are Not Liable for Civil Conspiracy.

Finally, Shabazz alleges that Defendants are liable for civil conspiracy. 

However, “a civil conspiracy claim is derivative and cannot be maintained absent an 

underlying tort that is actionable without the conspiracy.” Burgess v. Fischer, 735 

F.3d 462, 483 (6th Cir. 2013) (quoting Morrow v. Reminger & Reminger Co., L.P.A.,

915 N.E.2d 696, 711–12 (Ohio Ct. App. 2009)).

Because the Court has rejected each of Shabazz’s claims that would have 

provided an underlying basis for civil conspiracy, the Court also grants summary 

judgment for Defendants on this derivative claim.

CONCLUSION

For the reasons set forth above, the Court GRANTS Defendants’ Motions for 

Summary Judgment (Docs. 54, 55, 56, 57) and DENIES AS MOOT Defendants’ 

Motion to Strike (Doc. 61) the East Affidavit.

Accordingly, the Court DISMISSES this action WITH PREJUDICE. The 

Court further DIRECTS the Clerk to ENTER JUDGMENT in Defendants’ favor

and terminate this matter on the Court’s docket. 

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 25 of 26 PAGEID #: 2628
26

SO ORDERED.

December 30, 2021

DATE DOUGLAS R. COLE

 UNITED STATES DISTRICT JUDGE

Case: 1:18-cv-00339-DRC Doc #: 71 Filed: 12/30/21 Page: 26 of 26 PAGEID #: 2629