Sixth Circuit Affirms Court’s Summary Judgment Motion against Race-Car Driver Spokesman

Dec 1, 2005

The Sixth U. S. Circuit Court of Appeals has affirmed the a district court ruling that Mario Andretti, retired race-car driver and corporate spokesperson for Car Sound Exhaust System, Inc, was not entitled to monetary damages for an unauthorized use of his statement by Car Sound’s largest direct competitor, Borla Performance Industries, Inc. The court also concluded that Andretti was actually liable to Borla for court costs in refusing to settle the matter earlier.
In early November of 2001, Andretti had contracted with Car Sound giving the manufacturer of after-market exhaust systems and catalytic converters the exclusive right to use his name, image, likeness, and personal services. In the spring of 2003, Borla began its own advertising campaign which included a quote from Andretti in which he praised a Borla product.
Andretti brought charges against Borla in March of 2003. Andretti claimed Borla had never requested nor was given permission to use his earlier statement. Borla, however, did claim to receive permission from the original publisher of the article containing Andretti’s statement, but admitted to not having requested permission from Andretti.
Both courts agreed that Andretti’s permanent injunction to stop Borla from running the advertisement campaign that used his quote should be granted, but both also felt that Borla was entitled to a motion for summary judgment against Andretti because Andretti failed to show that he suffered any actual damages. The court felt that Andretti failed to produce any evidence of suffering, and therefore did not have a real claim against Borla.
Andretti had brought several claims for damages against Borla, including violations under the Federal Lanham Trademark Act, the Federal Copyright Act, unfair competition, the Michigan Consumer Protection Act, tortious interference with a business relationship, and quantum meruit, an unjust enrichment claim. The district court refused to find that Andretti was entitled to the $200,000 in monetary damages he requested.
In granting summary judgment for Borla, the district court actually penalized Andretti $5,393.35 for not accepting Borla’s previous settlement offer. The district court ordered that Andretti pay some of Borla’s court costs, including attorney’s fees, because Borla’s settlement offer had exceeded what the district court was willing to grant Andretti. The district court also ordered Andretti to pay all of Borla’s court costs after the date Borla had given Andretti the settlement offer Andretti refused and costs associated with Andretti’s refusal to dismiss a complaint. The district court, however, did not require Andretti to pay any of Borla’s court costs regarding the other claims.
Borla and Andretti cross-appealed. Andretti argued that the district court erred by granting Borla ’s motion for summary judgment on the lack of evidence of damages, denying its motion to strike Borla ’s motion for summary judgment, sanctioning Andretti for failure to accept Borla’s settlement offer, awarding Borla court costs, and refusing to award Andretti court costs.
On appeal, Borla argued that the court of appeals lacked jurisdiction to hear Andretti’s appeal because Andretti appealed only the order granting the motion for summary judgment, but not the judgment itself. In the alternative, if the court of appeals found that they had jurisdiction to hear Andretti’s appeal, Borla wanted to appeal on other accounts. Borla argued that the district court erred in determining that Andretti was the prevailing party in receiving the injunction, denying Borla’s motion for fees under the Lanham Trademark Act, and denying additional sanctions against Andretti for his refusal to voluntary dismiss the claim of tortious interference.
The court of appeals found that sanctions against Andretti were properly denied because Andretti had failed to voluntarily dismiss the tortious interference claim. The court also denied sanctions on the tortious interference claim because both parties had contributed to the unnecessary expenditure of judicial resources. Andretti’s sanctions for failing to voluntarily dismiss his unfair competition claim were upheld since Andretti did not have a registered trademark as required by Michigan law. The court of appeals ruled that although Andretti was granted an injunction to prevent Borla from using the advertisement, the district court had properly denied Andretti costs. Finally, the court of appeals found that the final judgment was not more favorable than Borla’s offer of judgment.
Andretti v. Borla Industries, No. 04-1835, 2005 WL 2709375 (6th Cir. Oct. 21, 2005).
Counsel: Argued: Appellants: Eric D. Scheible, Wineman & Scheible, Bloomfield Hills, Michigan. Appellee: Jeffrey P. Thennisch, Dobrusin & Thennisch, Birmingham, Michigan.
On Brief: Appellants: Eric D. Scheible, Wineman & Scheible, Bloomfield Hills, Michigan. Appellee: Jeffrey P. Thennisch, Dobrusin & Thennisch, Birmingham, Michigan, Melvin M. Raznick, Law Offices of Melvin Raznich, Southfield, Michigan.


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