United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
plaintiffs, all of whom are professional models, allege (Doc.
80) that without consent the defendants used the
plaintiffs' images to promote “sexy-costume couples
themed parties” and other events “geared”
toward “swingers” at the Caliente Resort and
Vacation Club. (Doc. 101 at 6) The plaintiffs sue under
the Lanham Act (Count I); sue under Section 540.08, Florida
Statutes, and under Florida common law for unauthorized
misappropriation of name (Counts II and III); sue under
Florida's Deceptive and Unfair Trade Practices Act (Count
IV); and sue under Florida common law for civil theft (Count
V), for defamation (Counts VI and VII), and for unjust
enrichment (Count VIII).
defendants move (Doc. 101) for summary judgment on Counts I,
IV, and V; for summary judgment on the claims for punitive
damages (Counts II, III, V, VI, and VII); and for summary
judgment on the claims for an attorney's fee (Counts II,
III, VI, VII, and VIII). The plaintiffs move (Doc. 144) for
summary judgment on all counts.
parties move for summary judgment on Count I. To prevail on a
false advertising claim under the Lanham Act, the plaintiffs
must show (1) that the defendants' advertisements were
false or misleading; (2) that the advertisements deceived, or
had the capacity to deceive, consumers; (3) that the
deception materially affected purchasing decisions; (4) that
the misrepresentation affects interstate commerce; (5) and
that the plaintiffs were injured or are likely to suffer
injury because of the false advertising. Hickson Corp. v.
Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
plaintiffs and the defendants fail to show that no genuine
dispute exists as to any material fact. For example, the
defendants plausibly dispute that consumers were deceived or
misled by the use of the plaintiffs' images on the
defendants' promotional materials. (Doc. 101 at 14)
II and III
plaintiffs move for summary judgment on their claims for
unauthorized misappropriation of name. The plaintiffs'
argument on both counts consists of just more than half a
page of text that recites the legal elements of the claims
and concludes, “There being no genuine issue of
material fact, summary judgment should be granted for
Plaintiffs . . . .” (Doc. 144 at 23) But a genuine
dispute of material fact exists (such as whether the
defendants were authorized to use the plaintiffs' images
through the use of a stock image license and through Peter
Smith's “affiliation” with lingerie
companies). (Doc. 117 at 11) Count IV All parties move
for summary judgment on
defendants argue that because the plaintiffs are
“non-consumers, ” the plaintiffs lack standing to
bring a claim under FDUTPA. (Doc. 20 at 101) But a recent
state court decision examining whether a
“non-consumer” has standing under FDUTPA holds
that “[w]e . . . align ourselves with the [district]
courts which have held that an entity does not have to be a
consumer in order to have standing to bring a FDUTPA
claim.” Caribbean Cruise Line, Inc. v. Better
Business Bureau of Palm Beach County, Inc., 169 So.3d
164, 169 (Fla. 4th DCA 2015). The plaintiffs have standing to
bring their FDUTPA claims.
establish a claim under FDUTPA, the plaintiffs must show (1)
a deceptive act or unfair practice, (2) causation, and (3)
actual damages. Rollins, Inc. v. Butland, 951 So.2d
860, 869 (Fla. 2d DCA 2006). False advertising is a deceptive
act or unfair practice. “[C]ourts have recognized that
a claim for false, misleading and deceptive advertising falls
under FDUTPA.” Ameritox Ltd v. Aegis Services
Corp., No. 07-80498-CIV, 2008 WL 4540063, at *2 (S.D.
Fla. Oct. 10, 2008) (Marra, J.).
defendants argue that the plaintiffs fail to establish
deception and causation because the plaintiffs fail to
proffer evidence that the plaintiffs' images on the
flyers would probably deceive an objectively reasonable
person. The plaintiffs respond that the defendants cannot
show that “there is no set of circumstances under which
[the] plaintiffs could prevail on their FDUTPA
claim[s].” (Doc. 114 at 16) Contrary to the
plaintiff's assertion that the plaintiffs have presented
“dispositive and undisputed evidence of deception and
causation, ” genuine disputes of material fact exist
(including, for example, whether the advertisements were
misleading or likely to mislead and constitute an unfair or
deceptive trade practice). (Doc. 114 at 16)
the defendants argue that the plaintiffs cannot show actual
damages, which are recoverable under FDUTPA. Rollins,
Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984).
The plaintiffs ...