Timothy EPSTEIN published an article in the Chicago Daily Law Bulletin - "Pele in a spot to one-up Jordan — this time in court."

Brazilian soccer legend Edson Arantes do Nascimento, better known as Pele, is arguably the greatest, and most recognized, player to ever play the beautiful game.

In addition to a storied playing career, including three World Cup championships, Pele was presented with an honorary knighthood from Queen Elizabeth II and a lifetime achievement award from the late Nelson Mandela.

Time magazine even named Pele as one of the 100 most influential people of the 20th century. It comes as no surprise that companies like Subway, Procter & Gamble, Volkswagen and Coca-Cola inked the retired star to mega-endorsement deals.

With the 2016 Olympics in Pele’s native Brazil on the horizon, Bloomberg estimates that Pele’s brand may eclipse $100 million in revenue this year, which would set the record for yearly endorsement earnings.

Pele may be adding additional monies to that endorsement total from a lawsuit related to use of his “image” in an advertisement. The dispute stems from a full-page advertisement that Samsung placed in an October 2015 edition of the New York Times.

The ad featured a Pele look-alike next to a Samsung television where a soccer player is engaged in a bicycle kick. Pele is celebrated for perfecting and popularizing the bicycle kick among soccer players and fans. Even today the bicycle kick is synonymous with Pele, and, in fact, the movie poster for the biopic portraying Pele’s life depicts a young Pele in the midst of a bicycle kick.

Samsung’s advertisement was disseminated nationally, and Pele opines that the unauthorized ad has hurt his brand’s image.

The complaint alleges that Samsung negotiated with Pele in 2013 for the right to use Pele’s identity, including his name, image and likeness, for upcoming advertising campaigns. However, Pele alleges Samsung opted out of negotiations without ever obtaining permission to use his likeness in any way.

Pele filed his suit on March 16 in U.S. District Court for the Northern District of Illinois, Eastern Division, seeking damages upwards of $30 million for all of his claims. A permanent injunction is also sought to prevent Samsung from using Pele’s identity, in any way, without prior authorization, in addition to an order mandating Samsung to place corrective advertising in future issues of the New York Times.

Pele’s complaint asserts that Samsung violated Section 43(a) of the Lanham Act (15 U.S.C. Section 1125) by using his identity without permission. Specifically, Pele contends Samsung’s use of his identity violates 15 U.S.C. Section 1125(a)(1)(A) as Samsung’s improper use of Pele’s likeness is “likely to cause confusion, mistake or deception as to the affiliation, connection or association of Samsung with Pele or as to the origin, sponsorship or approval of Samsung’s goods by Pele.”

Additionally, the complaint asserts two state law claims: the Illinois Right of Publicity Act (765 ILCS 1075/30) and the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2). Pele opines that Samsung violated the first act when Samsung used his likeness for commercial purposes without obtaining, or even requesting, Pele’s permission before running the advertisement.

Pele alleges the violation was willful because Samsung knew it did not rightfully obtain Pele’s permission. Moreover, Pele contends Samsung violated the Illinois Consumer Fraud and Deceptive Business Practices Act because using a Pele doppelganger created a likelihood of confusion or misunderstanding as to Pele’s sponsorship or approval of Samsung’s goods or created a likelihood of confusion as to Samsung’s affiliation with Pele.

The complaint goes on to allege that Samsung’s violation was “willful and outrageous, perpetrated by evil motive or with reckless indifference to the rights of others.”

There is a strong likelihood that Pele will prevail on each of his claims. Pele’s case is reminiscent of the suit that Michael Jordan waged against supermarket chains Jewel and Dominick’s. Despite receiving an initial verdict of $8.9 million from Dominick’s, Jordan recently settled with both supermarket chains for an undisclosed amount. Yet, Pele may have an even stronger argument against Samsung than Jordan had against Jewel regarding his Right of Publicity Act claim.

To prevail on the Right of Publicity Act claim, Pele will need to show an appropriation of his name or likeness without his consent for Samsung’s commercial benefit. Jordan v. Jewel Food Stores Inc., 83 F.Supp.3d 761, 767 (2015). In Jordan v. Jewel, Jordan’s motion for summary judgment was denied because it was not evident that the advertisement was for Jewel’s commercial benefit.

A commercial benefit or purpose is defined under the Right of Publicity Act as “the public use or holding out of an individual’s identity (1) on or in connection with the offering for sale or sale of a product, merchandise, goods or services; (2) for purposes of advertising or promoting products, merchandise, goods or services; or (3) for the purpose of fundraising. 765 ILCS 1075/5.

However, this case is slightly distinguishable from Jordan v. Jewel, in Pele’s favor, as he should face little to no difficulty demonstrating his likeness was appropriated without his consent for Samsung’s commercial benefit. In Jordan v. Jewel, the court found that Jewel’s advertisement containing Jordan’s iconic number “23” on the tongues of basketball shoes, which were similar to Jordan’s signature basketball shoes, was an unsanctioned appropriation of Jordan’s likeness.

The Pele doppelganger next to someone performing Pele’s patented bicycle kick is an even more flagrant misappropriation. Moreover, Samsung’s advertisement was for a commercial purpose because the Pele look-alike is geared toward selling one of Samsung’s specific televisions. Samsung’s advertisement even includes a picture and description of the specific television.

Pele’s case should continue the trend of court protection of endorser name, image, and likeness and should impact the way businesses conduct advertising.

Even if Pele does not succeed here, the litigation itself should give pause to the advertising and marketing departments of companies who choose to use celebrity look-alikes in ad campaigns.

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