John J. Tharp Jr.
The law, U.S. District Judge John J. Tharp Jr. noted in a written opinion this week, does not concern itself with trifles.
When a trifle does find its way into court — for example, the trivial complaint of someone who takes himself too seriously — it does not fare well, he wrote.
“To the maxim de minimis non curat lex, then, let us add a complementary proscription: defectum humoris non curat lex — the law does not reward humorlessness,” he wrote Monday.
Johannes T. “Ted” Martin of Des Plaines, he wrote, would do well to heed that warning.
Tharp dismissed a lawsuit accusing Living Essentials LLC of improperly trading on Martin’s identity as a Hacky Sack record holder in a television commercial for the company’s energy drink.
The commercial portrays an actor performing a series of feats — disproving the theory of relativity, swimming the English Channel, finding Bigfoot and mastering the art of origami “while beating the record for Hacky Sack” — in the same afternoon thanks to a shot of 5-hour Energy.
Martin contends Living Essentials, the maker of 5-hour Energy, is exploiting his achievement as the holder of the world record for most consecutive kicks — no knees — in the footbag, or Hacky Sack, singles category.
The commercial invades his privacy in violation of the Illinois Right to Publicity Act and constitutes false advertising in violation of the federal Lanham Act, Martin contends.
Tharp didn’t see it that way — and expressed doubt that anyone other than Martin would.
“The commercial is an obvious joke that employs hyperbole and exaggeration for comedic effect,” he wrote. “Its claims could not deceive anyone with a modicum of common sense and wit.”
Martin, who represented himself in the case, said he will appeal Tharp’s ruling.
Living Essentials did not approach him before making the commercial, Martin said.
It’s a violation of the IRPA, he said, “if you use somebody’s identity for commercial purposes without their prior written consent.”
Martin also rejected Tharp’s conclusion that — regardless of the merits of the IRPA claim — he missed a one-year deadline for bringing that count.
The five-year statute of limitations for property claims applies to claims brought under the IRPA, Martin contended.
The lead attorney for Living Essentials, David C. Van Dyke of Howard & Howard Attorneys PLLC, could not be reached for comment.
Hacky Sack is the trademarked name of a type of footbag. The footbag game is similar to traditional Asian games in which players kick a weighted shuttlecock with the goal of keeping it off the ground as long as possible.
With the exception of a 50-day window in 1997, Martin has held his record since 1988.
In his opinion, Tharp rejected the notion that the 5-hour Energy commercial identifies Martin.
“The language and graphic of the commercial depict vague generalities regarding ‘the record for Hacky Sack’ and do not clearly indicate that someone has broken the specific record that Martin set (or any other particular [H]acky [S]ack record),” Tharp wrote.
However, he wrote, his conclusion that Living Essentials has not violated the IRPA is based on a “more fundamental point.”
“The commercial is a joke, a comedic farce,” he wrote. “The claims are not intended to be taken as true — and to the extent that there could be any doubt on that score, the commercial includes a clear disclaimer advising the most gullible among us that these are not ‘actual results.’”
The farcical nature of the commercial also calls for dismissal of the Lanham Act claim, Tharp wrote.
“Even unsophisticated consumers would get the joke,” he wrote.
Therefore, he wrote, consumers would not be confused into believing that a shot of 5-hour Energy will allow them to accomplish what Martin did after years of training.
“Were he to take a step back, Martin might even see that, if anything, the ad promotes the game to which he has given so much of himself (including, perhaps, his sense of humor),” Tharp wrote.
The case is Johannes T. Martin v. Living Essentials LLC, No. 15 C 1647.