NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 9, 2018*
Decided March 9, 2018
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17-2043
JOHANNES T. MARTIN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 15 C 6998
WENDY’S INTERNATIONAL, INC.,
and GUINNESS WORLD RECORDS Jorge L. Alonso,
LIMITED, Judge.
Defendants-Appellees.
ORDER
Guinness World Records lists Johannes “Ted” Martin as the record holder for
consecutive kicks of a footbag (commonly associated with the Hacky Sack brand).
Martin’s record of 63,326 consecutive kicks has stood since 1997. He brings this lawsuit
under the Lanham Act, 15 U.S.C. §§ 1051-1141n, and the Illinois Right of Publicity Act,
765 ILCS 1075/1–1075/60, against fast-food giant Wendy’s International and Guinness.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-2043 Page 2
He alleges that, by urging families to play together and challenge world records like
Martin’s, the defendants unlawfully exploited him and lied about his footbag. Because
the district court correctly reasoned that Martin did not state a valid claim that the
defendants violated either law, we affirm the dismissal of the complaint.
We review de novo the dismissal of the complaint and accept as true all of its
well-pleaded facts. See Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 763 F.3d 696, 700
(7th Cir. 2014). From August to September 2013, Wendy’s and Guinness ran a
promotion for Wendy’s Kids’ Meals. Each kids’ meal, Guinness’s website explained,
“will come with one of six Guinness World Records record-breaking toys” that
“provides fun challenges and a chance for parents and kids to outdo each other for the
title of family’s best.” One of the toys was a footbag, and the website said that “it’s only
a matter of time before the record of 946 people playing in a circle at once gets taken
down.” Each kids’ meal also included a link to a free Guinness World Records eBook,
which provided “an exclusive guide to records” for families to use.
The promotion also appeared in print in several places. The words “Guinness
World Records” were printed on the footbag and the sealed plastic packaging around
the toy. An in-store display showed the footbag, alongside the five other toys, under the
heading “Kids v. Parents” and the logos for Wendy’s and Guinness. The text on the
kids’ meal bag also referred to the six toys as “record-breaking.” Finally, an
instructional card accompanied the footbag. One side had the words “Guinness World
Records” and the Wendy’s Kids’ Meal logo and asked “Can You Break The Record?”
The other side, labeled “Instructions,” included this challenge: “How many times in a
row can you kick this footbag without it hitting the ground? Back in 1997, Ted Martin
made his world record of 63,326 kicks in a little less than nine hours!” The instructions
then described methods for keeping the footbag from hitting the ground and concluded
by asking “[w]hat kind of family record can you set?”
Martin asserts federal and state-law claims. First he appears to allege that the
defendants violated the Lanham Act in two ways. Their use of his name on the
instructional card, he contends, likely confused the public into thinking that he had
endorsed the footbag. And, Martin insists, Wendy’s and Guinness falsely advertised by
calling the footbag in the kids’ meals “record-breaking”—he contends the phrase
incorrectly suggests that the toy is the same kind of footbag that Martin used to set his
record. These violations, Martin concludes, injured him by impeding his ability to
manufacture his own footbag. He also alleges that Wendy’s and Guinness used his
No. 17-2043 Page 3
identity for commercial purposes without his written consent, in violation of the Illinois
Right of Publicity Act, 765 ILCS 1075/1–1075/60.
The district judge dismissed the case for failure to state a claim. He first
considered the two Lanham Act theories. The false-endorsement claim failed, the judge
explained, because Martin had not plausibly alleged consumer confusion. And the
judge decided that Martin’s false-advertising claim failed because the phrase
“record-breaking” was non-actionable puffery. The state-law claim failed, the judge
reasoned, because the defendants may truthfully identify Martin as the “performer” in
a particular performance. See 765 ILCS 1075/35(b)(3).
We address the false-endorsement claim under the Lanham Act first. That Act
provides a civil remedy if false or misleading factual representations are likely to
confuse or deceive an ordinary consumer 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.” 15 U.S.C. § 1125(a)(1)(A); see Lexmark
Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1384 (2014); Jordan v. Jewel
Food Stores, Inc., 743 F.3d 509, 522 (7th Cir. 2014); Parks v. LaFace Records, 329 F.3d 437,
445–46 (6th Cir. 2003); Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir.
1996). Martin contends that he adequately alleged that the defendants likely confused
consumers into thinking that he endorses their footbags because they printed “Guinness
World Records” on the footbags and put his name and record on the instructional cards.
No reasonable consumer would think that Martin endorsed the footbags. The
appearance of “Guinness World Records” on the footbag might prompt a reasonable
consumer to conclude that Guinness—not Martin—is associated with the footbag.
Martin’s name on the instruction card simply identifies him as the holder of a record,
not the endorser of any product. (The rest of the card offers techniques for keeping the
footbag from hitting the ground and then describes how to play a footbag game.)
Because Martin cannot advance a plausible allegation that ordinary consumers would
be confused, his false-endorsement claim fails. See 15 U.S.C. § 1125(a)(1)(A).
The Lanham Act also allows a plaintiff to recover if the defendant uses a term
that “misrepresents the nature, characteristics, qualities, or geographic origin” of a
person’s “goods, services, or commercial activities” in a promotion. 15 U.S.C.
§ 1125(a)(1)(B); see Lexmark, 134 S. Ct. at 1384. Puffery—“meaningless superlatives” or
statements that “no one is or could be fooled” by—is not actionable. Schering-Plough
Healthcare Prods., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 512 (7th Cir. 2009); see also
Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 159–61 (2d Cir. 2007). Martin
No. 17-2043 Page 4
argues that labeling the toys “record-breaking” was not puffery; rather the label
deceived consumers into actually thinking that the toys were the same kind of items
used to set world records. But again no reasonable consumer would believe that free
toys accompanying kids’ meals to encourage intra-family play were the same types of
items used to set world records. The term “record-breaking,” as used by the defendants,
was thus the kind of “exaggerated advertising, blustering, and boasting” that is not
actionable. United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1180 (8th Cir. 1998); see also
Time Warner Cable, 497 F.3d at 160.
That leaves Martin’s claim under the Illinois Right of Publicity Act. This Act does
not apply to the “use of an individual’s name in truthfully identifying the person as the
author of a particular work or program or the performer in a particular performance.”
765 ILCS 1075/35(b)(3). Martin argues that this exception does not apply because he did
not perform in the defendants’ promotion. But Martin’s qualification is not in the statute.
Section 105/35(b)(3) allows anyone to identify truthfully the performer of a particular
performance. And that is what the defendants did. Therefore Martin’s claim under this
Act was properly dismissed.
AFFIRMED