## Facts

- AFL Philadelphia LLC owned and operated the Philadelphia Soul arena football team; Joseph E. Krause, Jr. worked as the team’s Director of Sales.
- Krause alleged he was hired due to his reputation and industry relationships and that he used them to generate record ticket sales and goodwill among fans and season ticket holders.
- In December 2008, the Arena Football League suspended the 2009 season, and Krause received notice of termination around that time.
- The season suspension triggered public criticism related to delays in refunding season ticket holders.
- An email about the season cancellation was sent to fans and was designated as coming from Krause’s team email address.
- Krause alleged he did not author or send the email and did not authorize the team to use his name or email address.
- Krause filed counterclaims alleging (1) Lanham Act § 43(a) false designation of origin and (2) Pennsylvania misappropriation of name/right of publicity, asserting the team used his goodwill with fans to gain a business advantage.
- AFL Philadelphia moved to dismiss the counterclaims under Rule 12(b)(6) for failure to state a claim.

## Issues

1. Whether the counterclaim plausibly alleged a Lanham Act § 43(a) false designation of origin claim based on use of Krause’s name/email, including protectability through secondary meaning, use in commerce, and likely consumer confusion.
2. Whether the counterclaim plausibly alleged Pennsylvania misappropriation of name/right of publicity, including nonconsensual use for commercial or other advantage.

## Decision

- The court denied the motion to dismiss.
- The court held that Krause plausibly alleged a Lanham Act § 43(a) claim because personal names can function as protectable marks upon a showing of secondary meaning, and the pleadings supported a reasonable inference of likely confusion.
- The court held that Krause plausibly alleged a Pennsylvania misappropriation/right-of-publicity claim, including the “commercial advantage” element, based on alleged use of his goodwill to manage fan reaction and preserve customer relationships.

## Legal Principles

- On a Rule 12(b)(6) motion, the court accepts well-pleaded facts as true and draws reasonable inferences in the nonmovant’s favor; fact-intensive issues are generally not resolved on the pleadings.
- Under Lanham Act § 43(a), a personal name is typically descriptive and is protectable only upon allegations supporting secondary meaning among the relevant consuming public.
- Secondary meaning is assessed using multiple, nonexclusive factors (e.g., extent of promotion and consumer association, length and exclusivity of use, evidence of copying, and evidence of actual confusion); the absence of particular factors at the pleading stage does not require dismissal.
- A plausible § 43(a) claim may be stated where alleged use of a person’s name in a commercial communication could cause consumers to believe the person authored, sponsored, or approved the message.
- Under Pennsylvania law, misappropriation of name/right of publicity requires nonconsensual use of another’s name or likeness for commercial or other advantage; alleging use to trade on goodwill with customers can satisfy the advantage element at the pleading stage.

## Conclusion

The court allowed Krause’s counterclaims to proceed, concluding that the alleged nonconsensual use of his name and email address to communicate a controversial message to fans plausibly stated both Lanham Act false designation and Pennsylvania misappropriation claims, including allegations of secondary meaning and commercial advantage.


AFL Phila. LLC v. Krause, 639 F. Supp. 2d 512 (E.D. Pa. 2009)