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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
Mark Andrews, p/k/a SisQó, Court File No. ______
Plaintiff,
v. COMPLAINT AND DEMAND FOR Bacardi USA, Inc. JURY TRIAL and MullenLowe U.S., Inc,
Defendants.
Plaintiff Mark Andrews, b/k/a SisQó (“Plaintiff”), by and through his attorneys,
Fredrikson & Byron P.A., 200 South Sixth Street, Suite 4000, Minneapolis, Minnesota
55402, hereby bring this Complaint against Defendants Bacardi USA, Inc. (“Bacardi”) and MullenLowe U.S., Inc. (“MullenLowe”) (collectively, “Defendants”).
PARTIES
1. Mark Andrews, b/k/a SisQó is an individual resident of the State of
Minnesota, residing in Maple Grove, Minnesota.
2. On information and belief, Bacardi USA, Inc. is a Delaware corporation with its principal place of business in Coral Gables, Florida. Grey Goose is a brand under the Bacardi corporation.
3. On information and belief, MullenLowe U.S., Inc. is a Massachusetts corporation with its principal place of business in Boston, Massachusetts.
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VENUE AND JURISDICTION
4. This is an action for False Endorsement and False Designation of Origin under Section 43(a) of the Lanham Act, violation of the Minnesota Deceptive Trade
Practices Act (Minn. Stat. §§ 325D.44-45), and violation of the right of publicity.
5. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1338(a) and (b), and 1367.
6. Venue is proper under 28 U.S.C. § 1391(b) and (c).
7. Bacardi is subject to jurisdiction in Minnesota because it conducts systematic and substantial business in the State of Minnesota, including purposefully and actively soliciting Minnesota customers by advertising its products in the State of
Minnesota, as described in the causes of action herein. The Bacardi advertisement at issue in this litigation was also played in the State of Minnesota.
8. MullenLowe is subject to jurisdiction in Minnesota because it performs services in Minnesota, including purposefully and actively soliciting Minnesota customers by airing advertisements in the State of Minnesota as described in the causes of action herein.
FACTS
A. SisQó is a Well-Known Celebrity.
9. SisQó is a well-known recording artist and celebrity personality with a career spanning almost a quarter of a century. Since 1996, he has been a fixture throughout the world of entertainment both as part of the band Dru Hill and as a solo artist/actor.
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10. His achievements include chart-topping hits such as “Thong Song,”
“Incomplete,” “A-List,” “L.I.P.s,” etc.; television appearances in shows such as MTV’s
SisQó’s Shakedown, Celebrity Wife Swap, Celebrity Big Brother, Gone Country, Sabrina the Teenage Witch, The Grammy Awards; and movie appearances in Get Over It and
Snow Dogs. His popularity even spawned a line of toys and celebrity dolls bearing his popular likeness, all of which feature his signature platinum blonde Caesar hairstyle and flamboyant wardrobe.
11. SisQó’s longstanding career, distinctive likeness, and presence in nearly every segment of the entertainment world have made him an immediately recognizable worldwide celebrity who rightfully commands a significant fee for the use and exploitation of his publicity rights.
B. The “Live Victoriously; Live Like You Just Got Signed” Television Commercial.
12. In 2019, Defendants aired a television commercial called “Live
Victoriously; Live Like You Just Got Signed” (the “Commercial”). The Commercial used SisQó’s likeness, without authorization or compensation, to sell Grey Goose vodka.
The Commercial aired in the Minneapolis/Saint Paul media market.
13. The Commercial features a talent who is virtually identical to SisQó, complete with his signature platinum blonde hair and flamboyant clothes. The actor’s appearance, clothing, and movement bears a striking resemblance to SisQó. A side by side comparison shows the clear resemblance:
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14. As displayed in the below screen captures, it is apparent the Commercial was created and produced on behalf of Bacardi with the intention of passing off the actor as SisQó himself. The screenshot from the website ispot.tv below shows the Commercial with the title “Grey Goose TV Commercial: Live Victoriously: Signed Ft. SisQó.”
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The caption states “As SisQó parades down the street to Monteloco’s “Cuidado,”
Grey Goose states that you should live like you were just signed.” It credits SisQó with an acting role.
15. On Grey Goose’s YouTube page, the SisQó lookalike in the Commercial caused several fans to believe that the actor is SisQó himself.
C. Unauthorized Use of SisQó’s Likeness.
16. Bacardi and MullenLowe used SisQó’s likeness and image in the
Commercial without authorization.
17. Counsel for SisQó reached out to Defendants’ counsel in attempt to resolve the issue outside of Court. Defendants refused to compensate SisQó and refused to stop airing the Commercial, forcing SisQó to file this litigation.
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COUNT ONE False Endorsement and False Designation of Origin Under Section 43(a) Of The Lanham Act (Against All Defendants)
18. Plaintiff incorporates the above allegations.
19. Defendants’ unauthorized use of SisQó’s identity, through its use of his lookalike is a false or misleading representation of fact that falsely implies SisQó’s endorsement of Bacardi’s products and services and association between SisQó and
Defendants. In fact, there is no such association.
20. SisQó has no control over any activities by Bacardi involving use of his image or efforts to associate with SisQó.
21. Defendants’ unauthorized use of Plaintiff’s identity and likeness in connection with Bacardi’s products and services is likely to cause confusion, mistake, or deception as to the affiliation, connection, or association of Defendants with SisQó as to the origin, sponsorship, or approval of Bacardi’s goods and services by SisQó in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A).
22. SisQó has been irreparably harmed and otherwise damaged by these acts.
23. This case is an exceptional case pursuant to 15 U.S.C. § 1117.
24. By reason of Defendants’ violation of Section 43(a) of the Lanham Act,
Plaintiff is entitled to recover actual damages, treble damages, attorneys’ fees, and the costs of this litigation pursuant to 15 U.S.C. § 1117 and injunctive relieve pursuant to 15
U.S.C. § 1116.
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COUNT TWO Violation of Minnesota Deceptive Trade Practices Act; Minn. Stat. § 325D.44 (Against All Defendants)
25. Plaintiff incorporates the above allegations.
26. By using SisQó’s likeness without his permission, Defendants have engaged in numerous deceptive trade practices in violation of the Minnesota Deceptive
Trade Practices Act, Minn. Stat. § 325D.44, including, but not limited to:
(a) Engaging in conduct that causes a likelihood of confusion or
misunderstanding as to the source, sponsorship, approval or certification of
Defendants’ products;
(b) Engaging in conduct that causes a likelihood of confusion or of
misunderstanding as to affiliation, connection or association between Plaintiff and
Defendants; and
(c) Using deceptive representations in connection with its products.
27. Defendants willfully engaged in the above-described trade practices, knowing them to be deceptive.
28. As a result of Defendants’ conduct, Plaintiff is entitled to an injunction and attorneys’ fees under Minn. Stat. § 325D.45.
COUNT THREE Violation of the Right of Publicity (Against All Defendants)
29. Plaintiff incorporates the above allegations.
30. Defendants violated the right of publicity of SisQó owned by Plaintiff.
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31. The right of publicity limits the public use of a person’s likeness and/or identity for commercial purposes. The right of publicity prevents another from using a celebrity’s image or likeness in connection with a product, thereby creating a false and misleading impression that the celebrity is endorsing the product.
32. SisQó owns a right of publicity during his lifetime.
33. Defendants used SisQó’s identity to promote their products, including, but not limited to Bacardi alcohol.
34. Defendants’ use of the image and likeness of SisQó was not authorized by
Plaintiff. Defendants deliberately used SisQó’s image and likeness for their own gain at the expense of Plaintiff.
35. Plaintiff has been damaged by Defendants’ conduct in an amount to be proven at trial.
36. Plaintiff is entitled to an injunction preventing Defendants from further exploiting SisQó’s image, and likeness for their own financial gain.
JURY DEMAND
1. Plaintiff demands a jury trial.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that the Court:
1. Enter an Order in favor of Plaintiff on his claims against Defendants;
2. Enter an injunction preventing Defendants and all of those acting in concert with them from using SisQó’s image and likeness without express authorization.
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3. Enter an Order in favor of Plaintiff and against Defendants for all damages in an amount to be determined at trial, including any applicable interest;
4. Declare this case exceptional under 15 U.S.C. § 1117;
5. Enter an Order in favor of Plaintiff and against Defendants for all of
Plaintiff’s attorneys’ fees, costs and expenses incurred herein;
6. Enter an Order for any such other and further relief as allowed by law or determined to be just and appropriate.
Dated: August 14, 2020 s/ Christopher D. Pham Laura L. Myers (#0387116) Christopher D. Pham (#0390165) Jessica R. Sharpe (#0400243) FREDRIKSON & BYRON, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402-1425 Telephone: 612.492.7000 [email protected] [email protected] [email protected]
Attorneys for Plaintiff
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