Complaint - Kramer v. The Proctor & Gamble Co. (CDCA 2020)

Case 2:20-cv-10705 Document 1 Filed 11/24/20 Page 1 of 13 Page ID #:1
1 BLAISE & NITSCHKE, P.C.

HEATHER L. BLAISE, ESQ. (SBN 261619)
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123 N. Wacker Drive, Suite 250
3 Chicago, IL 60606
Telephone: 312-448-6602
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Email: hblaise@blaisenitschkelaw.com
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Attorneys for Plaintiff,
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WAYNE KRAMER
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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11 WAYNE KRAMER, CASE NO: 2:20-cv-10705
12 Plaintiff, COMPLAINT FOR DAMAGES
13 FOR:
v.
14 1) VIOLATIONS OF CALIFORNIA
15 THE PROCTER & GAMBLE STATUTORY RIGHT OF
COMPANY, an Ohio Registered PUBLICITY (CAL. CIV. CODE
16 Corporation, and DOES 1-100, § 3344.1);
17 2) VIOLATIONS OF CALIFORNIA
Defendants. COMMON LAW RIGHT OF
18 PUBLICITY; and
19 3) FALSE ENDORSEMENT
(SECTION 43(A) OF THE
20 LANHAM ACT, 15 U.S.C. § 1125(A))
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DEMAND FOR JURY TRIAL
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JURISDICTION AND VENUE
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1. This Court has subject matter diversity jurisdiction over this action
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pursuant to 28 U.S.C. §1332.
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COMPLAINT FOR DAMAGES
1 2. This Court has personal jurisdiction over Defendant in that, among other
2 things, Defendant does business in this Judicial District, and Plaintiff does business
3 and is suffering harm in this Judicial District.
4 3. Venue is proper in this Judicial district pursuant to 28 U.S.C. §§
5 1391(b)-(d) and 1400(a).
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THE PARTIES
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4. Plaintiff WAYNE KRAMER is now, and at all times mentioned in this
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Complaint was, a citizen of the United States, residing in Studio City, California.
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5. Defendant THE PROCTER & GAMBLE COMPANY is now, and at all
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times mentioned in this Complaint was, a corporation with its principal place of
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business at 4400 Easton Commons Way, Suite 125, Columbus OH 43219.
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BACKGROUND
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6. Plaintiff Wayne Kramer was the founder of legendary band the MC5.
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Kramer is widely cited by both critics and fellow musicians as having co-created the
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prototype for the musical genres punk rock and heavy metal. In 1969, the MC5
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released the politically incendiary and musically revolutionary hit album “Kick Out
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the Jams” on Elektra Records. In addition to having an illustrious musical career as
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well as being cited by Rolling Stone Magazine as a “Top 100 Guitarist of All Time,”
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Mr. Kramer is a prominent and vigorous social activist. A true music legend, Mr.
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Kramer is much more than a widely respected sonic innovator. He is also a devoted
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activist who has channeled his personal journey into a commitment to social change
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spanning decades. In furtherance of his activism, Mr. Kramer co-founded Jail Guitar
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Doors, a Los Angeles-based 501(c)(3) non-profit organization that uses donated
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musical instruments and devoted teaching artists to rehabilitate incarcerated men and
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women, as well as justice-involved children.
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7. Guided by a deep belief in the power of positive personal transformation
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through music, Mr. Kramer’s work with the incarcerated through Jail Guitar Doors
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1 serves as an inspiration for artists everywhere to use their platforms toward positive
2 social change. Mr. Kramer has been the subject of several documentaries and
3 television programs highlighting both his musical and philanthropic endeavors,
4 including the PBS Special Series “Lifecasters: The Beast and The Angel.” Mr.
5 Kramer is the recipient of a number of prestigious awards, including: (1) a special
6 recognition proclamation by the City of Los Angeles for his accomplishments and
7 service to Los Angeles County via Jail Guitar Doors; (2) a California Lawyers for the
8 Arts “Artistic License Award” in recognition of his work using music as
9 rehabilitation in the communities of both male and female adult and juvenile
10 incarcerated population; (3) The Future of Music Coalition “Voice of Change” honor
11 in recognition of his lifelong commitment to creative expression; (4) the Psychiatric
12 Rehabilitation Association “Board of Directors Award” for the use of his experience
13 and talent to advance recovery; and (5) the recipient of various music awards
14 including the prestigious Kerrang Magazine’s “Icon Award.” He is also a guest
15 lecturer at California Institute of the Arts, University of California Los Angeles,
16 Loyola University New Orleans, Georgetown University, and numerous others.
17 8. Mr. Kramer has a substantial impact and a great range in the music
18 industry.
19 9. Mr. Kramer alone holds the publicity rights, including the use of Mr.
20 Kramer’s name, likeness, image, and identity for commercial purposes.
21 10. Mr. Kramer’s established signature stars and stripes Fender guitar has
22 become synonymous with his image and brand.
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9 (See https://www.fender.com/articles/artists/what-i-know-so-far-wayne-kramer/.)
10 11. In 2011, Fender released a limited-run replica of the guitar as the Fender
11 Wayne Kramer Stratocaster. Fender promoted the guitar through a video featuring
12 Mr. Kramer holding, displaying, and discussing the guitar.
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(See https://www.youtube.com/watch?v=3C2XlrCzVf0.)
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12. On or about December 2018, Defendant was advertising, marketing, and
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distributing products using Mr. Kramer’s name, image and/or likeness.
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13. Defendant’s design of the aforementioned body wash product was
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clearly inspired by Mr. Kramer’s performances:
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23 (See https://riotfest.org/2017/06/wayne-kramers-youtube-page-becomming-treasure-
24 trove-mc5-fans/) (website last viewed December 13, 2019.)
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(See https://twitter.com/waynekramer.)
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(See https://www.fordtheatres.org/calendar/rock-out-5-2019.)
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14. Defendant’s products which incorporated Mr. Kramer’s name, image
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and/or likeness were available for purchase to the public and were sold in stores
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throughout the United States.
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1 15. On or about December 30, 2018 Defendant’s product was advertised and
2 sold on its website www.oldspice.com.
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16. On information and belief, the aforementioned products have been
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removed from Old Spice’s website. However, as of December 6, 2019,
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aforementioned products are still available for online purchase at Walmart.com.
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26 (See https://www.walmart.com/ip/Old-Spice-Guitar-Solo-Scent-Body-Wash-for-
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1 17. Defendant had no authority from Mr. Kramer to produce, advertise,

2 market, and/or distribute products with Mr. Kramer’s name, image and/or likeness.
3 18. Defendant did not have a license or any other form of consent to use Mr.
4 Kramer’s name, image, and/or likeness in any way.
5 FIRST CLAIM FOR RELIEF
VIOLATIONS OF CALIFORNIA STATUTORY RIGHT OF PUBLICITY-
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CAL. CIV. CODE § 3344.1
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19. Plaintiff repeats, alleges, and incorporates by reference Paragraphs 1
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through 18, as set forth herein.
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20. No one other than Mr. Kramer holds his publicity rights, including the
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use of Mr. Kramer’s name, image, likeness, and identity for commercial purposes.
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21. Plaintiff is informed and believes that in or about December 2018, and
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continuing to this date, Defendant has willfully and knowingly infringed on the
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publicity rights of Mr. Kramer for its own purpose of advertising or selling, or
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soliciting purchases of products, merchandise, and goods, even after being informed
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of this claim.
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22. The appropriations were unauthorized and without Plaintiff’s consent.
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23. The appropriations usurped Plaintiff’s ability to control the subject
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publicity rights and diluted his ability to effectively market such images, all to the
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detriment of Plaintiff.
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24. Plaintiff is informed and believes, and on other basis, alleges that as a
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proximate result of the advantage accruing to Defendant from said appropriation,
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Plaintiff has been/or will be deprived of monetary sums in an amount to be
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determined in the further course of this litigation.
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25. Defendant’s actions caused confusion in the marketplace. Namely, Mr.
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Kramer’s fans were placed under the false belief that such use was actually
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authorized by Mr. Kramer.
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13 26. Defendant’s acts of violation of statutory right of publicity against
14 Plaintiff have caused Plaintiff damage in that the value of merchandise actually
15 authorized by Plaintiff is diluted in the marketplace.
16 27. In addition, Mr. Kramer’s goodwill, reputation, and business has been
17 and will continue to be irreparably harmed by Defendant unless it is enjoined from its
18 exploitative and infringing commercial business practices and from using Mr.
19 Kramer’s image and likeness. Given Mr. Kramer’s established brand and image,
20 professional reputation, and moral commitment as a champion for the working class,
21 he never would have licensed his image or likeness in connection with the sale of
22 Defendant’s body wash products.
23 28. Mr. Kramer would have never authorized Defendant to use his image or
24 likeness as it would never be in his interest to be associated with aforesaid body wash
25 product and more importantly Defendant and the advertising website “Old Spice”
26 which does not incarnate any of the values Mr. Kramer represents and to which has
27 dedicated most parts of his life.
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1 29. As a result, Mr. Kramer is appalled, disgusted, and embarrassed to see

2 his image and/or likeness falsely endorsing Defendant’s products because such
3 unauthorized use creates a perception of hypocrisy in the public eye and irreparably
4 undermines the important international social work that has been Mr. Kramer’s adult
5 life’s mission, the value of which is immense and cannot be overstated.
6 30. Importantly, the Wayne Kramer and MC5 fans are disappointed to see
7 Mr. Kramer’s image offered in connection with a body wash product by a company
8 named “Old Spice”, thereby tarnishing the reputation of Mr. Kramer.
9 SECOND CLAIM FOR RELIEF
10 VIOLATIONS OF CALIFORNIA COMMON LAW RIGHT OF PUBLICITY
11 31. Plaintiff repeats, alleges, and incorporates by reference Paragraphs 1
12 through 30, as though fully set forth herein.

13 32. Plaintiff is informed and believes that in or about 2018, Defendant
14 willfully and knowingly infringed on the publicity rights of Mr. Kramer by

15 appropriating the identity of Mr. Kramer for its own purpose of advertising or selling,
16 or soliciting purchases of products, merchandise, and goods, even after being
17 informed of this claim.
18 33. No one other than Plaintiff hold a license or any other form of consent
19 from Mr. Kramer to use his image, likeness, or identity.

20 34. The appropriation usurped Plaintiff’s ability to control the subject
21 publicity rights and diluted his ability to effectively market such images, all to the
22 detriment of Plaintiff.
23 35. Plaintiff is informed and believes, and on that basis, alleges that as a
24 proximate result of the advantage accruing to Defendant from said appropriation,

25 Plaintiff has been and/or will be deprived of monetary sums in an amount to be
26 determined at trial.
27 THIRD CLAIM FOR RELIEF
UNFAIR COMPETITION AND FALSE ENDORSEMENT
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1 (SECTION 43(A) OF THE LANHAM ACT, 15 U.S.C. § 1125 (A))

2 36. Plaintiffs repeat, allege, and incorporate by reference Paragraphs 1
3 through 35, as though fully set forth herein.
4 37. Since approximately on or about December 2018 to the date of this
5 Complaint, Defendants have created, manufactured, marketed and sold, body wash
6 products prominently featuring Mr. Kramer’s likeness in conjunction with the
7 signature stars and stripes Fender guitar which has become synonymous with Mr.
8 Kramer’s image and band.
9 38. Defendant, by its intentional and unauthorized appropriation and use of
10 Mr. Kramer’s image and likeness has engaged, and is continuing to engage, in acts of
11 the wrongful deception of the purchasing public, with the effect of confusing
12 customers into believing that Defendant is legitimately connected with, or sponsored
13 or approved by Wayne Kramer along with wrongful deprivation of Mr. Kramer’s
14 good name and reputation.
15 39. Defendant’s use of the likeness of Mr. Kramer constitutes a false
16 designation or origin, false or misleading description of fact, or false or misleading
17 representation of fact, which is likely to cause confusion, mistake, or to deceive as to
18 the endorsement, affiliation, connection, or association of Defendant with Mr.
19 Kramer
20 40. Defendant’s unauthorized and infringing activities as described herein
21 has been knowing, intentional, and malicious, and its misuses were carried out with
22 the intent to trade upon the goodwill and reputation of Mr. Kramer
23 WHEREFORE, Plaintiff, WAYNE KRAMER, by and through his attorney,
24 respectfully prays for judgment against Defendants, THE PROCTER & GAMBLE
25 COMPANY and DOES 1-100, for:
26 A. Compensatory damages for Defendant’s unauthorized use of Mr.
27 Kramer’s image and/or likeness;
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1 B. An accounting for, and payment to the Plaintiff as actual damages, all

2 gains, profit and advantages derived by Defendant as a result of its unfair
3 trade practices, unfair competition, and false endorsement;
4 C. Additional damages for an amount determined in the further course of
5 this litigation for unfair and deceptive trade practices, competition, and
6 false endorsement;
7 D. Punitive damages for willful violation of Cal. Civ. Code § 3344;
8 E. Reasonable attorney fees;
9 F. The costs of this action including, but not limited to, expert fees;
10 G. Pre-judgment interest according to law; and
11 H. Such other and further relief as the Court deems just and proper.
12 JURY DEMAND
13 Plaintiff demands trial by jury on all issues so triable.
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15 DATED: November 24, 2020 Respectfully submitted,
16 WAYNE KRAMER
17 /s/ Heather L. Blaise
HEATHER L. BLAISE, ESQ. (SBN 261619)
18
123 N. Wacker Drive, Suite 250
19 Chicago, IL 60606
20 Telephone: 312-448-6602
21 Email: hblaise@blaisenitschkelaw.com
Attorney for Plaintiff
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Case 2:20-cv-10705 Document 1 Filed 11/24/20 Page 1 of 13 Page ID #:1

1 BLAISE & NITSCHKE, P.C.

1 17. Defendant had no authority from Mr. Kramer to produce, advertise,

1 29. As a result, Mr. Kramer is appalled, disgusted, and embarrassed to see

11 31. Plaintiff repeats, alleges, and incorporates by reference Paragraphs 1

12 through 30, as though fully set forth herein.

14 willfully and knowingly infringed on the publicity rights of Mr. Kramer by

19 from Mr. Kramer to use his image, likeness, or identity.

24 proximate result of the advantage accruing to Defendant from said appropriation,

1 (SECTION 43(A) OF THE LANHAM ACT, 15 U.S.C. § 1125 (A))

1 B. An accounting for, and payment to the Plaintiff as actual damages, all

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