Mario Andretti's Right of Publicity Claim Wins Injunction But No Damages Award

Case: Andretti v. Borla Performance Indus. Inc., Case Nos. 04-1835/2404/2406 (6th Cir. October 21, 2005)

The One Sentence Summary: The Sixth Circuit affirmed the district court's (1) injunction prohibiting future use of Mario Andretti's quote or likeness or implying that Andretti endorsed defendant's products; (2) finding that plaintiffs had failed to prove damages; (3) order imposing Rule 11 sanctions against plaintiff for a meritless trademark claim; and (4) awarding costs against plaintiff for failing to accept a Rule 68 Offer of Judgment that would have enjoined future use of plaintiff's name or likeness.


What They Were Fighting About: Retired race car driver Mario Andretti was a spokesman for exhaust system manufacturer Car Sound. Borla, Car Sound's largest direct competitor, used a quote from Andretti in an advertising campaign without his permission. Andretti sued Borla, seeking a permanent injunction and damages for violating Andretti’s right to publicity, tortiously interfering with a business relationship, violating the Michigan Consumer Protection Act, quantum meruit, violating the Lanham Act §§ 1125(a) and 1125(c), and unfair competition.

Sixth Circuit Holdings:

• Affirms summary judgment for defendant because plaintiff did not produce any evidence of damages. Therefore, in light of defendant's offer to enter a permanent injunction, plaintiff's claims were moot.
• Possible damage to plaintiff's reputation as a corporate spokesperson was hypothetical and speculative where plaintiff did not show that any current contract or future opportunity was impaired.
• District court did not abuse its discretion in refusing to impose Rule 11 sanctions on one party with regard to an issue where both parties contributed to the unnecessary expenditure of judicial resources. However, the Sixth Circuit affirmed the imposition of Rule 11 sanctions against plaintiff for failing to properly research his complaint and failing to voluntarily dismiss a meritless count.
• Although plaintiff prevailed in obtaining an injunction, the district court did not abuse its discretion in failing to award plaintiff costs under Rule 54(d) because plaintiff's loss on the issue of damages amounted to a victory for defendant. Moreover, the 6th Circuit affirmed the award of costs to defendant that were incurred after plaintiff refused defendant's Rule 68 offer of judgment because plaintiff's actual recovery was not greater than the Rule 68 offer.
• Defendant had good cause for filing its summary judgment motion two weeks late because plantiff did not complete his compelled responses to defendant's discovery requests until after the scheduled dispositive motion deadline. Furthermore, the delay did not prejudice plaintiff even though the Court, in considering the motion, ruled against plaintiff on the merits.