# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted June 30 , 2016 *

Decided June 30 , 2016

Before

WILLIAM J. BAUER , Circuit Judge

JOEL M. FLAUM , Circuit Judge

MICHAEL S. KANNE , Circuit Judge

No. 16

- 1370

JOHANNES T. MARTIN , Plaintiff

- Appellant ,

v

.

LIVING ESSENTIALS , LLC , Defendant

- Appellee

. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division

.

No. 15 C 01647

John J. Tharp , Judge

.

O R D E R
For nearly twenty years Guinness World Records TM has listed suburban Chicago resident Johannes “Ted” Martin as the open singles champion for consecutive kicks of a footbag ( commonly associated with the Hacky Sack brand). Martin’s record of 63,326 kicks in just under nine hours has stood since 1997, and in this lawsuit under the Lanham Act, 15 U.S.C. §§ 10 51

– 1141n , and the Illinois Right of Publicity Act, 765 ILCS 1075 , he c laims that the maker of 5

- h our ENERGY is using his identity without

* After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus the appeal is submitted on the brief s and record. See F ED

. R. A PP

. P. 34(a)(2)(C)

. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 16

- 1370 Page 2

permission to market that caffeinated drink. The district court dismissed the action for failure to state a claim, see F ED

. R. C IV

. P . 12(b)(6), and Martin appeals.

Living Essentials, LLC , has been selling its “en ergy shot” since 2003. In 2013 the company launched a commercial featuring an actor who boasts that in just five hours

— all because of 5

- hour ENERGY

— he disprov ed Einstein’s theory of relativity,

sw am the English Channel twice , found Bigfoot, and “master ed origam i while beating the record for Hacky Sack

. ” The actor, not to be mistaken for the 56

- year

- old Martin, appears to be folding an origami animal while kick ing two footbags, not one. In his amended complaint Martin contends that the actor’s mention of “beating the record for Hacky Sack ” is an unmistakable reference to his achievement and, thus, a misappropriation of his “ identity as the record holder.” What ’s mo re, says Martin in his complaint, the actor’s “false representation” tarnished his “hard earned record” by attributing the feat to a “performance enhancing drug

. ” He s eeks to enjoin further distribution of the commercial, recoup the defendant’s profits fro m the marketing campaign, and be awarded “treble damages from loss of endorsement” ( the last of these despite conceding that he’s endorsed no product since earning the record ). In the district court’s view, however, Martin fails to state a claim under fede ral or state law because any consumer w ould understand the commercial to be “ farcical hyperbole , ” and the phrase “record for Hacky Sack” is too ambiguous to invoke Martin’s “identity

. ” The
state

- law claim, the court added, is also barred by a one

- year stat ute of limitations.

The district court interpreted Martin’s claim under the Lanham Act to allege that Living Essentials’ commercial amounts to false advertising

. S ee 29 U.S.C. § 1125(a)(1)(B)

. Yet puffery and parody are not actionable, the court reasoned, and thus Martin has no claim under this theory. See Schering

- Plough Healthcare Prods., Inc. v. Schwarz Pharma, Inc. , 586 F.3d 500, 512 (7th Cir. 2009); Time Warner Cable, Inc. v. DIRECTV, INC., 497 F. 3d 144, 159

– 61 (2nd Cir. 2007)

. Mar tin emphasizes, however, that his federal claim is n o t about false advertising but rather false association or endorsement. The Lanham Act, in § 1125(a)(1)(A), provides a civil remedy if false or misleading factual representation s are likely to confuse or deceive their audience about the plaintiff’s “ affiliation, connection, or association ” with the defendant “ or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities. ” See Lexmark Int’l, Inc. v. Static Control Com ponents , 134 S. Ct. 1377, 1384 (2014) ; Jordan v. Jewel Food Stores, Inc. , 743 F.3d 509, 522 (7th Cir. 2014)

. The likelihood of an ordinary consumer being misled is what matters

. See Parks v. LaFace Records , 329 F.3d 437, 445

– 46 (6th Cir. 2003); Abdul

- Jabbar v. General Motors Corp. , 85 F.3d 407, 410

– 11 (9th Cir. 1996)

. With advertising, e ven a parody of a celebrity can trigger liability; the critical question is whether consumers are likely to beNo. 16

- 1370 Page 3

confused and believ e that the aggrieved party endor ses or approves of a product. See White v. Samsung Elec. Am., Inc. , 971 F.2d 1395, 1396, 1399

– 1401 (9th Cir. 1992) (re manding for trial on claim by TV hostess Vanna White that VCR ads featuring robot posed in wig and gown on Wheel of Fortune set implied he r product endorsement and emphasizing importance of celebrity’s level of public recognition). Martin insists that the 5

- hour ENERGY commercial , which he calls “obscene,” impli es that he endorse s the company’s energy shot and even suggest s that, without using the caffeinated drink , he would not have set a footbag record and become famous.

Martin’s take on the commercial is not reasonable. His complaint credits himself with “mass appeal” as “ the record holder of a household name , ” but whether that’s bomb ast or taken seriously, we cannot imagine how this ad would confuse anyone into thinking that Martin himself endorses 5

- h our E NERGY or that his use of the caffeinated drink explains a record set before the product came to market. T he mention of Hacky Sack , after all, is sandwiched between obviously absurd achievements ( which fine print in the 30

- second commercial disclaim s as “n ot actual results , ” al though w ho possibly would believe that the actor, with or without an energy shot, ha d disprove d the theory of relativity or found the elusive Bigfoot?). And Martin’s personal endorsement of 5

- hour ENERGY cannot logically be inferred from the actor’s claim that he “ mastered origami while beating the record for Hacky Sack” ; the actor cannot be accused of impersonating Martin, since he brags of besting , not holding for years, a footbag record . To eclipse Martin’s record in five hours would require a superhuman effort of three to four kicks per second , but, that aside, why would a viewer assume that it was M artin’s footbag record which had fallen? The actor is shown kicking two footbags, and Guinness World Records credits Finnish footbagger Juha

- Matti Rytilahti, not Martin, with the most consecutive kicks of two footbags. Moreover, despite exhi bits attached t o Martin’s complaint showing that he once was featured in a T rivial P ursuit question and an Upper Deck trading card, he does not plausibly allege that he enjoys the degree of public
not oriety necessary to support a claim under the Lanham Act for false endo rsement

. See White , 971 F.2d at 1400. Nor does he claim to have achieved his wor ld title while creati ng origami animals , as the commercial depicts

. The district court thus was correct in dismissing Martin’s claim under the Lanham Act, and at that point the court should have decided whether to retain supplemental jurisdiction over the Illinois stat utory claim. See 28 U.S.C. § 1367; Cortezano v. Salin Bank & Trust Co. , 680 F.3d 936, 941 (7th Cir. 2012) (explaining that , ordinarily, if all fed eral claims are dismissed before trial, district court “should relinquish jurisdiction over supplemental state law claims rather tha n resolve them on the merits”); Miller v.No. 16

- 1370 Page 4

Herman , 600 F.3d 726, 738 (7th Cir. 2010) (same) . The district court overlooked th is step, however, because it incorrectly assum ed the existence of diversity jurisdiction under 28 U.S.C. § 1332. The court reasoned that Martin had pleaded diversity of citizenship by alleging that he’s “a long term resident” of Illinois while Living Essen tials “ is based in Michigan

. ” Yet residence and citizenship may differ, so alleging only the former will not invoke diversity jurisdiction. See Winforge, Inc., v. Coachmen Indus., Inc. , 691 F.3d 856, 867 (7th Cir. 2012); Heinen v. Northrop Grumman Corp. , 671 F.3d 669, 670 (7th Cir. 2012)

. And of particular significance in this case, the home “base” of a limited liability company, or LLC , is irrelevant, given that an LLC has the citizenship of each of its members, and Martin’s complaint says nothing about t he citizenship of the members of Living Essentials. See Fellowes
, Inc., v. Changzhou Xinrui Fellowes Office Equip. Co. , 759 F.3d 787, 787

– 88 (7th Cir. 2014); Cosgrove v. Bartolotta , 150 F.3d 729, 731 ( 7th Cir. 1998).

Because the district court thought tha t it had diversity jurisdiction, the court addressed Living Essentials’ motion to dismiss and concluded both that Martin does not state a claim under the Illinois Right of Publicity Act and that , even if he d id , his claim is barred by the statute of limita tions. On the latter question the IRPA is silent, and the Supreme Court of Illinois has n’t provide d guidance. The district court relied on Blair v. Nevada Landing P’ship , 859 N.E.2d 1188, 1192 (Ill. Ap p. Ct. 2006), which does conclude that a one

- year statute of limitations applies to claims under the IRPA

. As far as we can tell, Blair is the only Illinois decision on point. The district judge overlooked, however, that in Toney v. L’Oreal USA, Inc. , 406 F.3d 905 (7th Cir. 2 005), we remanded for trial an IRPA claim which a nother judge in the Northern District of Illinois had found to be timely but then dismissed for failure to state a claim , s ee id . at 907

– 10 , rev’g Toney v. L’Oreal USA, Inc. , No. 02 C 3002 , 2002 WL 31455975 (N.D. Ill. Nov. 1, 2002) . In that lawsuit the district court accepted the plaintiff’s position that the general five

- year limitations period found in 735 ILCS 5/13

- 205 governs claims arising under the IRPA , a conclusion that on appeal wasn’t challenged by the defendant or questioned by this
court. Then in Berry v. Ford Models, Inc. , 525 F. App’x 451 (7th Cir. 2013), we expressly declined to decide if Blair is correct about the statute of limitations; the I RPA claim in Berry was frivolous, we explained, and thus we avoided “ decid ing a question of Illinois law in a case where the statute of limitations

— whether one year or five

— could not possibly make a difference , ” i d . at 454.

As in Berry we decline to predict if the state supreme court would endorse Blair , since, once again, the answer does not matter. See Abstract & Title Guar. Co. v. Chicago Ins. Co. , 489 F.3d 808, 811 (7th Cir. 2007) (explaining that, although decisions of state intermediate appellate courts offer “persuasive g uidance,” if the “highest court in theNo. 16

- 1370 Page 5

state has not spoken we must attempt to predict how we believe that court would decide”) . As the district court recognized, Martin’s complaint does not state a claim under the IRPA. That law pr ohibits the nonconsensua l exploitation of an individual’s “identity” for commercial purposes, 765 ILCS 1075/30, and broadly defines “identity” to

mean “any attribute

... that serves to identify that individual to an ordinary, reasonable viewer or listener, ” id

. 1075 /5

. Examples given in the statute include the individual’s name, signature, image, and voice, id ., and though the list isn’t exhaustive, we agree with the district court that the phrase “the record for Hacky Sack” is too ambiguous to call an “attribute” of Martin. As noted above, no reasonable viewer would interpret the commercial for 5

- hour ENERGY as referring to Martin, and because he does not plausibly allege that Living Essentials invoked his “identity” through the actor’s statement, Martin fails to state a clai m under IRPA. AFFIRMED.