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 RecordsTM 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. §§ 1051–1141n, and the Illinois Right of Publicity Act, 765 ILCS 

1075, he claims that the maker of 5-hour 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 briefs and record. See FED. R. APP. P.

34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 16-1370 Page 2

permission to market that caffeinated drink. The district court dismissed the action for 

failure to state a claim, see FED. R. CIV. P. 12(b)(6), and Martin appeals.

Living Essentials, LLC, has been selling its “energy 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 disproved Einstein’s theory of relativity, 

swam the English Channel twice, found Bigfoot, and “mastered origami 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 kicking 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 more, 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 seeks to enjoin further 

distribution of the commercial, recoup the defendant’s profits from 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 federal or state law because 

any consumer would 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 statute of limitations.

The district court interpreted Martin’s claim under the Lanham Act to allege that 

Living Essentials’ commercial amounts to false advertising. See 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). Martin emphasizes, however, that his federal claim is not 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 representations 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 

Components, 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, even a parody of a 

celebrity can trigger liability; the critical question is whether consumers are likely to be 
No. 16-1370 Page 3

confused and believe that the aggrieved party endorses or approves of a product. 

See White v. Samsung Elec. Am., Inc., 971 F.2d 1395, 1396, 1399–1401 (9th Cir. 1992) 

(remanding 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 her product endorsement and 

emphasizing importance of celebrity’s level of public recognition). Martin insists that the 

5-hour ENERGY commercial, which he calls “obscene,” implies that he endorses the 

company’s energy shot and even suggests 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 

bombast or taken seriously, we cannot imagine how this ad would confuse anyone into 

thinking that Martin himself endorses 5-hour ENERGY or that his use of the caffeinated 

drink explains a record set before the product came to market. The mention of 

Hacky Sack, after all, is sandwiched between obviously absurd achievements (which 

fine print in the 30-second commercial disclaims as “not actual results,” although who

possibly would believe that the actor, with or without an energy shot, had disproved 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 Martin’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 exhibits attached to Martin’s 

complaint showing that he once was featured in a Trivial Pursuit question and an

Upper Deck trading card, he does not plausibly allege that he enjoys the degree of public 

notoriety necessary to support a claim under the Lanham Act for false endorsement. 

See White, 971 F.2d at 1400. Nor does he claim to have achieved his world title while 

creating 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 statutory 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 federal claims are dismissed before trial, district court “should relinquish jurisdiction 

over supplemental state law claims rather than 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 this step, 

however, because it incorrectly assumed 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 Essentials “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 the 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 that 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 did, his claim is 

barred by the statute of limitations. On the latter question the IRPA is silent, and the 

Supreme Court of Illinois hasn’t provided guidance. The district court relied on Blair v.

Nevada Landing P’ship, 859 N.E.2d 1188, 1192 (Ill. App. 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. 2005), we remanded for trial an 

IRPA claim which another judge in the Northern District of Illinois had found to be 

timely but then dismissed for failure to state a claim, see 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 IRPA claim in 

Berry was frivolous, we explained, and thus we avoided “deciding a question of Illinois 

law in a case where the statute of limitations—whether one year or five—could not 

possibly make a difference,” id. 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 guidance,” if the “highest court in the 
No. 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 prohibits the nonconsensual 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 claim under IRPA.

AFFIRMED.