Opinion
CASE NO. 1:03-cv-00844-DFH-VSS
March 25, 2004
ENTRY ON PENDING MOTIONS
Before the court is a motion to dismiss filed by defendant, Michael Jackson. That motion has led to a number of other motions filed by plaintiffs and Michael Jackson which are related to the original motion, supporting briefs and submissions. Defendant Universal Music Group, Inc. ("UMG") has also filed a motion to dismiss. This entry addresses Michael Jackson's and UMG's motions to dismiss as well as the additional motions that followed Jackson's motion to dismiss.
Background
Plaintiffs Elvy Woodard, William Adams a/k/a Gordon Keith, Alan Michael Rogers, Gordon Hagan and Samuel Holder are former members of a musical ensemble known as Ripples and Waves. They bring suit individually and as Ripples and Waves. The group performed in the Gary, Indiana and Chicago areas during the late 1960s and early 1970s.
Earlier in the 1960s, defendants Joseph Jackson and his children, Michael, Tito, Marion, Jackie and Jermaine formed a musical group known as the Jackson 5, which is also named as a defendant. They too performed in the Gary and Chicago areas. The Jackson 5 went on to national recording and performance success in the 1970s. Their records were released on the Motown label, and UMG has been sued as a successor to Motown.
A11 parties agree that the musical group was known both as "The Jackson 5" and "The Jackson Five," and that the minor difference is irrelevant for purposes of this case.
Although the Jackson 5 have not recorded together recently, their recordings are still marketed in various original and newly compiled forms. One of those compilations is a music CD entitled "Ripples and Waves — An Introduction to The Jackson Five". According to the packaging of the CD and the pleadings, the compilation was copyrighted in 1999 and released in 2000 under the Motown label. The liner notes to the CD contain the following statement:
Originally named `Ripples and Waves' before adopting the Jackson 5 moniker, the boys had already issued two singles for local label Steeltown and a fervent local following before they were brought to the attention of Motown boss, Berry Gordy by both Gladys Knight and Bobby Taylor (of the Vancouvers).
Plaintiffs allege, and defendants agree, that the Jackson 5 were never known as Ripples and Waves. Plaintiffs also allege that the CD is not the only source of communication that inaccurately describes the Jackson 5 as having been formerly known as Ripples and Waves. A biography of Michael Jackson written in 1991 contained a statement (the first written mention and the most likely source of the mistaken identification) that the Jackson 5 started their musical careers under the name Ripples and Waves. Another compilation CD, released in 1996 and titled "Jackson 5-The Ultimate Collection," also had a liner note stating that the band was "sometimes known as the Ripples and Waves Plus Michael" before adopting the Jackson 5 name. Various fan websites also suggest some tie between the Jackson 5 and the name Ripples and Waves. Plaintiffs allege that even the Rock 85 Roll Hall of Fame mistakenly mentions in its biographical reference of the group that the band had been known as Ripples and Waves Plus Michael.
In this case, the real Ripples and Waves musicians claim as plaintiffs that the defendants have intentionally conspired to steal the Ripples and Waves identity and have exploited that identity for the purpose of promoting Jackson 5 recordings. Regardless of the original source of the confusion, plaintiffs allege that the defendants have done nothing to correct the impression that they were formerly known as Ripples and Waves or Ripples and Waves Plus Michael, and that they have in fact purposefully advanced the false notion. Plaintiffs seek relief under the federal Lanham Act, 15 U.S.C. § 1125, as well as under various common law theories which they title Unfair Competition, Unjust Enrichment, Civil Aiding and Abetting and Civil Conspiracy.
Plaintiffs also asserted a Right of Publicity claim in their Amended Complaint, but they have voluntarily dismissed that claim.
Michael Jackson has filed a motion to dismiss with a supporting affidavit. As grounds for the motion he argues a lack of personal jurisdiction, the statute of limitations, and the failure of the Amended Complaint, under several of plaintiffs' theories, to state a claim upon which relief may be granted. Plaintiffs have opposed the motion and have moved to strike Michael Jackson's affidavit and to have the court schedule a hearing that Michael Jackson would be required to attend. They have also filed a motion for leave to file a surreply, a motion for leave to file a supplemental response, and a motion to amend their supplemental response. In addition to briefs in support of his motion to dismiss and in response to some of the motions filed by plaintiffs, Michael Jackson has filed a motion for sanctions, which has yet to be fully briefed by the parties. As noted, UMG has also moved to dismiss the claims against it for failure to state a claim upon which relief could be granted.
Analysis
Defendant Michael Jackson
The federal Lanham Act does not authorize nationwide service of process. Accordingly, a defendant can be sued under the Lanham Act only in a state in which he would be subject to the personal jurisdiction of the state courts. ISIIntl, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 550 (7th Cir. 2001); PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997).
Michael Jackson maintains that his relationship to Indiana and the circumstances of this case are insufficient to support the exercise of personal jurisdiction over him in this case by an Indiana court. His domicile is in California. He has submitted a sworn affidavit indicating that his only connection to Indiana is his ownership of the real estate parcel in Gary where his childhood home is located. He claims that he has not resided in Indiana since 1968, and that his recent visits to the state were in connection with a court-ordered deposition he gave in Indianapolis in a lawsuit brought against him in the United States District Court for the Northern District of Indiana, Cause No. 2:97-CV-141 PS (henceforth referred to as the Northern District litigation), by some of the same plaintiffs who are pursuing this matter. He combined a visit to his childhood home and public appearances in Gary with his last appearance in Indianapolis for purposes of the deposition.
The Northern District litigation involves a different Jackson 5 music CD that refers to "Ripples and Waves." The allegations in that lawsuit include claims that the CD at issue contains copyrighted works that were actually performed by Ripples and Waves itself, and misidentified those works as having been created and performed by the Jackson 5.
Pursuant to a joint motion filed by the parties, this court has already ruled that the deposition given by Michael Jackson in the Northern District litigation may be used in connection with this case as well.
In addition to the testimony regarding his lack of general contacts with the state of Indiana, Michael Jackson's affidavit also provides the following testimony relative to the specific circumstances of this case:
4. I did not authorize or approve of the use of the phrase "Ripples and Wave" as part of the title of the album at issue in this action.
5. I have never performed at any time under the name "Ripples and Waves" or "Ripples and Waves Plus Michael."
6. I have never authorized the usage of the name "Ripples and Waves" or "Ripples and Waves Plus Michael" in any capacity in furtherance of any activity associated with myself.
7. I have never represented in any publication, article, website, or book that I performed at any time under the name "Ripples and Waves" or "Ripples and Waves Plus Michael."
8. I have never told anyone that I was a member of a group called "Ripples and Waves" or "Ripples and Waves Plus Michael."
9. Because I have never engaged in any of the conduct outlined in paragraphs 5, 6, 7, and 8, I have never engaged in that conduct in the State of Indiana.
Based on the representations in his affidavit, Michael Jackson asks the court to dismiss the case against him for want of personal jurisdiction.
In response to Michael Jackson's contention that personal jurisdiction is lacking, plaintiffs argue that his affidavit only raises a question of fact with regard to the ultimate issue, that his motion therefore should be denied, and that discovery on the scope of Michael Jackson's involvement with the CD should be allowed. They maintain that specific jurisdiction exists as to both the state common law claims and the Lanham Act claim based upon the allegations contained in the Amended Complaint. They cite Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Ltd. P'ship, 34 F.3d 410 (7th Cir. 1994), as support for their position.
Contacts with a state, for purposes of personal jurisdiction, must satisfy at least one of two tests, for either general jurisdiction or specific jurisdiction, such due process of law permits the exercise of jurisdiction over the person for purposes of a particular claim or claims. A party subject to general jurisdiction in a court may be sued there on virtually any claim, regardless of where it has arisen. A party subject to only specific jurisdiction may be sued in a court in a jurisdiction where the party has less extensive contacts, but where the claim arises from those contacts. International Medical Group, Inc. v. American Arbitration Ass'n, Inc., 312 F.3d 833, 846-47 (7th Cir. 2002). Mr. Jackson's affidavit, which has not been rebutted by contrary evidence, shows that he does not have a substantial and continuing presence in Indiana sufficient to warrant a finding of general jurisdiction. Neither of the response briefs filed by plaintiffs contends otherwise. The court focuses its attention on specific jurisdiction.
Plaintiffs point out correctly that the affidavit of Michael Jackson challenges the allegations of the Amended Complaint and the ultimate theory of recovery. However, in challenging specific jurisdiction it is not uncommon for a defendant to raise a factual issue relevant to both personal jurisdiction and the merits of the underlying claims. See, e.g., Stauffacher v. Bennett, 969 F.2d 455, 459 (7th Cir. 1992). When such a challenge to personal jurisdiction occurs, plaintiffs have the burden of establishing a basis for personal jurisdiction, but they also receive the benefit of the doubt if comparable levels of proof are advanced, whether by affidavit or otherwise. Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir. 1983); International Steel Co. v. Charter Builders, Inc., 585 F. Supp. 816, 819 (S.D. Ind. 1984). If, however, the defendant challenging jurisdiction provides affidavits in support of a motion to dismiss, the non-moving parties may not simply rest on the allegations of the complaint. International Steel Co., 585 F. Supp. at 819. In considering a motion to dismiss for lack of personal jurisdiction, the court must determine if any genuine questions of material fact exist. If such questions of fact exist, an evidentiary hearing could be held to resolve such questions. Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002).
In the Northern District litigation, Judge Moody denied Michael Jackson's motion to dismiss for lack of personal jurisdiction. In that case, Jackson failed to support his motion with any actual evidence until he filed his reply brief. The court found that the plaintiffs had alleged a prima facie basis for jurisdiction, and the court disregarded the late evidence from Jackson. Adams v. Jackson, No. 2:97-CV-141 (N.D. Ind. July 19, 2002). In this case, by contrast, Jackson supported his motion with timely evidence, and plaintiffs have failed to rebut that evidence.
In this case, in addition to testifying that he had virtually no current contacts with the state, Michael Jackson submitted his affidavit denying any involvement with either the use of the name Ripples and Waves at any time or the inclusion of that name in the title or liner notes of the CD at issue. Further, pursuant to the request of both parties, his deposition has been submitted for use in any way permitted by the Federal Rules of Civil Procedure. Such uses include support for his motion to dismiss for lack of personal jurisdiction. In that deposition, Michael Jackson makes it abundantly clear that he had never heard of a musical group by the name of Ripples and Waves until this litigation was filed and that he had nothing to do with the name or the use of the name at any time in his career. His role with respect to the CD at issue was simply as one of the recording artists who originally recorded the songs.
Plaintiffs' reliance on Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Ltd., 34 F.3d 410 (7th Cir. 1994), does not help their position. In the Indianapolis Colts case, personal jurisdiction was premised on purposeful actions taken outside the state of Indiana which caused injury in the state. The defendant did not deny that it was taking those actions, such as using the name "Colts" as part of the team name (the "Baltimore CFL Colts"). Here Michael Jackson has denied under oath having anything to do with the use of the name Ripples and Waves, whether with regard to the CD at issue or otherwise.
A. The Motion to Strike the Affidavit
Plaintiffs have not come forward with any evidence — affidavits or testimony — to the contrary. Rather, they seek to have Michael Jackson's affidavit stricken on three grounds. First, they allege that Michael Jackson lacks sufficient personal knowledge of his business affairs to make the representations made in the affidavit. Plaintiffs claim that a deposition of Mr. Jackson's personal attorney taken in the Northern District litigation establishes that Mr. Jackson's business managers are the people who usually have the pertinent knowledge with regard to his various business affairs. Second, plaintiffs claim that the differences in facsimile headers and apparent print quality between the two pages of the affidavit are suspicious. Third, plaintiffs claim that the affidavit, as originally submitted, was not an original document as required by the Federal Rules of Evidence.
The latter two objections have been easily remedied. Since the Motion to Strike was filed, and for unrelated reasons, the court has required all filings in this case to be made electronically. Defendants' re-submission of the affidavit by electronic filing did not assist the court in reaching a determination on the Motion to Strike. The court requested and the defendant filed the original of Michael Jackson's affidavit, with an original signature. A review of the affidavit offers no basis for finding it is anything but authentic.
As for the first objection, the fact that Mr. Jackson has several business managers who usually take care of his various business affairs does not support a conclusion that he has no personal knowledge of particular business affairs. It is not inconsistent for both Michael Jackson and his business managers to have personal knowledge of any given set of circumstances. Accordingly, plaintiffs' motion to strike the declaration of Michael Jackson is denied.
Plaintiffs also filed a motion for a hearing on their motion to strike the declaration. Plaintiffs assert that the court should require Michael Jackson to appear in public for questioning regarding statements made in his affidavit. Since the affidavit is authentic and unambiguous, and plaintiffs have come forward with no evidence to the contrary, there is no reason for such a hearing.
B. Minimum Contacts
The court now turns to the substance of the responses to Michael Jackson's challenge to personal jurisdiction. Essentially the plaintiffs simply rely on the allegations of the Amended Complaint. They suggest that the court should allow discovery to take place. Plaintiffs Woodard, Rogers and Ripples and Waves also attach a copy of a complaint filed by Michael Jackson in unrelated litigation against UMG in California state court. Those plaintiffs claim that paragraph 23 of that complaint is a statement by Michael Jackson that he and UMG have an ongoing joint interest in the manufacture, sale and distribution of his pre-1976 music (which is apparently what is contained on the CD at issue). Plaintiffs conclude that, because the CD complained of was distributed in Indiana, he has contacts sufficient to allow this court to exercise personal jurisdiction.
Plaintiff William Adams was represented by separate counsel who filed a separate brief opposing the motion to dismiss.
Plaintiffs filed on March 5, 2004 a motion for leave to file the certified copy, which was tendered with the motion. The motion for leave to file the certified copy is hereby granted.
A long leap in logic would be required to equate the allegations in paragraph 23 with an admission by Michael Jackson that he has participated in, or ratified in some manner, the use of the name Ripples and Waves in connection with the title or liner notes in the particular CD at issue. It is a leap that this court will not begin to attempt.
As Michael Jackson pointed out in his reply brief, plaintiffs' responses failed to meet his affidavit with more than a reaffirmation of the bare allegations of their Amended Complaint. Further, this court has done nothing to preclude discovery from occurring on the issue of personal jurisdiction. In fact, pursuant to an October 2, 2003 order of Magistrate Judge Shields, discovery was specifically focused on what was needed to respond to the dispositive motions on file. Despite that opportunity, plaintiffs' numerous responses to the motion have not included any submission of comparable evidentiary value, garnered through discovery or otherwise. Accordingly, they have failed to raise any genuine issues of fact material to the issue of personal jurisdiction. Instead, plaintiffs have tried a variety of tactics to try to keep the case against Michael Jackson alive as long as possible, apparently in the hope of persuading him that he should settle in order to be left alone.
In his reply brief, Michael Jackson raises the specter of potential sanctions against the plaintiffs, pursuant to Rule 11 of the Federal Rules of Civil Procedure, while pointing out the deficiencies in plaintiffs' response briefs. Because the issue of potential sanctions had been raised, all of the plaintiffs filed a motion for leave to file a surreply. That motion argued that because the Rule 11 issue was brought up in a reply brief, they should be allowed to file a surreply. Yet the brief submitted with the motion seeks to argue only that Michael Jackson's name and likeness on the CD in question supports a presumption that he was involved in its production and sale. This is an argument that could and should have been made when plaintiffs filed their response briefs. It is an unconvincing argument as well. A picture of Michael Jackson at age 10 to 13 on a CD cover or liner does not connote, then or now, that he had anything to do with the CD beyond the music making or artistic function involved. In any event, the Rule 11 issue has been raised more appropriately in a separate motion for sanctions. Plaintiffs have an opportunity to respond to that motion and the Rule 11 issue more directly. The basis upon which plaintiffs sought leave to file the surreply brief no longer exists. Their motion is hereby denied.
In addition to the request for permission to file a surreply brief, plaintiffs have filed their "Motion For Leave to File Supplemental Response to Michael Jackson's Motion to Dismiss Instanter" and, subsequently, a "Motion to Amend Supplemental Response to Michael Jackson's Motion to Dismiss by Interdelineation (sic)." The gist of the proposed supplement is a repeat of plaintiffs' earlier arguments that Michael Jackson had sufficient jurisdictional contacts as a result of his contract with UMG and UMG's distribution of some of his recordings here in Indiana. In addition, the motion criticizes the manner in which Michael Jackson has responded to discovery, claiming that he has been uncooperative and citing sweeping objections in response to the bulk of interrogatories served upon him.
Michael Jackson's agreement to allow UMG to market and exploit his music nationally is insufficient to establish personal contacts sufficient to sustain personal jurisdiction over him in Indiana. The agreement is not inconsistent with his sworn testimony that he had nothing to do with naming the CD at issue or including the name Ripples and Waves in the liner narrative. Further, if plaintiffs had viable objections to the responses to their written discovery, they could have moved to compel pursuant to Rule 37 of the Federal Rules of Civil Procedure and applicable local rules, not through this attempt to supplement a response to an earlier motion. Consequently, the court denies the motion for leave to file the supplemental response, and the motion seeking to amend by interlineation.
Plaintiffs have not come forward with evidence sufficient to create a question of fact regarding Michael Jackson's contacts with the State of Indiana or his involvement in the use of the name Ripples and Waves as part of the title of the CD or within the narrative contained in the liner notes. Consequently, this court finds that no hearing is warranted. Michael Jackson's motion to dismiss must be granted because the court cannot properly exercise personal jurisdiction over him in this case.
Although granting Michael Jackson's motion to dismiss based upon the personal jurisdiction argument moots the need for any discussion of the other grounds asserted by Jackson for dismissal, as is apparent from the court's analysis in the remaining portions of this entry that deal with UMG's motion, some of those grounds had merit as well.
II. Defendant UMG
A. Statute of Limitations
UMG advances several arguments for dismissing plaintiffs' Amended Complaint. Its first centers on the statute of limitations. UMG argues that a two year statute of limitations applies, citing Sanderson v. Spectrum Labs, Inc., 227 F. Supp.2d 1001 (N.D. Ind. 2000), aff'd mem., 248 F.3d 1159 (7th Cir. 2000), and an unpublished 2002 decision from this court involving the same plaintiff, Sanderson v. Brugman, 2002 WL 31255470 (S.D. Ind. Sept. 20, 2002). Sanderson sold and promoted magnetic water treatment systems while the defendants in each of the cases sold chemical-based treatment systems. Among other claims, Sanderson alleged that the defendants had engaged in what might best be described as commercial defamation aimed at disparaging the competing magnetic treatment system. Since the Lanham Act does not have its own statute of limitations, a district court is required to borrow the most analogous state law limitations provision. See Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 821 (7th Cir. 1999). Both this court and Judge Lee of the Northern District saw Sanderson's Lanham Act claim as most comparable to a defamation claim under Indiana law and hence subject to a two year statute of limitations pursuant to Ind. Code § 34-11-2-4. Sanderson v. Brugman, 2002 WL 31255470 at 2; Sanderson v. Spectrum Labs, Inc., 227 F. Supp.2d at 1011.
In the case at bar, UMG argues that the same two year statute of limitations should apply from the release date of the CD, which according to plaintiffs' own Amended Complaint was no later than July 3, 2000. Plaintiffs argue that most courts have borrowed a state's statute of limitations for fraud cases when dealing with Lanham Act claims, so that the court should apply the six year Indiana limitation for a fraud claim in Ind. Code § 34-11-2-7. E.g., Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (7th Cir. 1996); Full Draw Productions v. Easton Sports, Inc., 85 F. Supp.2d 1001, 1011 (D. Colo. 2000); Derrick Mfg. Corp. v. Southwestern Wire Cloth, Inc., 934 F. Supp. 796, 805 (S.D. Tex. 1996).
Plaintiffs point out that these cases were cited by the Seventh Circuit in its unpublished affirmance of Judge Lee's ruling in Sanderson. See Sanderson v. Spectrum Labs, Inc., 248 F.3d 1159, 2000 WL 1909678 at 4. Rule 53 of the Seventh Circuit directs that an unpublished decision shall not be cited or used as precedent in any federal court within the circuit or by any such court for any purpose, except to support a claim of res judicata, collateral estoppel, or law of the case. This court mentions the unpublished Sanderson opinion because plaintiffs did, contrary to Circuit Rule 53, but in light of UMG's reliance on the district court opinion in Sanderson, it seems only fair for plaintiffs to point out the critical comment in the affirmance. In any event, both plaintiffs and the court are free to read such an opinion and to use it as a source for locating other relevant precedent, such as the Second Circuit's opinion in Conopco.
Plaintiffs' Lanham Act claim, as pleaded, asserts that the defendants "have falsely represented to the music trade and to the public generally that the Jackson Five Defendants were originally named RIPPLES WAVES." Such a claim is not as readily compared to a claim of defamation as the claim raised by Sanderson in the cases previously mentioned. The claim here is harder to classify. Although there is some room for individual interpretation and disagreement with regard to whether such a claim is closer to fraud or defamation, the court believes that in light of the use of the term "false representation," the court cannot say with confidence that the six year statute of limitations for fraud should not apply. Accordingly, UMG's motion will not be granted on statute of limitations grounds.
B. Lanham Act Issues
UMG's other grounds for dismissal are more persuasive. With respect to plaintiffs' Lanham Act claim, UMG has offered three persuasive reasons for dismissing the claim.
First, Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989), and Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 901-02 (9th Cir. 2002), hold that, with respect to titles of artistic works, the title must be explicitly misleading and devoid of any artistic relevance to the work in order for the Lanham Act to bar its use. In Rogers, the Second Circuit held as a matter of law that a film titled "Ginger and Fred" did not violate Lanham Act rights of Ginger Rogers. In Mattel, the Ninth Circuit held as a matter of law that a song titled "Barbie Girl" did not violate Lanham Act rights of the sellers of Barbie(r) dolls. That reasoning applies to the CD here.
Second, with respect to the erroneous statement in the liner notes that the group had been known as "Ripples and Waves" before adopting the Jackson 5 name, the representation inside a sealed CD package could not have an effect on the purchasing decision of a consumer. See Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1181 (9th Cir. 2003) (allegedly false statement on video jacket that was not available to buyer until after purchase by telephone could not have affected purchase decision). Plaintiffs suggest that some customers might have read the liner notes before buying the CD, either by seeing a friend's copy or an opened store copy. This theory is merely desperate speculation, and it is inconsistent with the Ninth Circuit's decision in Rice, where such exposure to a friend's copy was also possible.
Third, the facts alleged in the complaint show that plaintiffs have abandoned any rights they may have had in the name Ripples and Waves. Under 15 U.S.C. § 1127, a mark "shall be deemed to be `abandoned'" when "its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment." Plaintiffs admitted that Ripples and Waves have not performed since the late 1980s and have not released any musical recordings for more than 30 years. Despite plaintiffs' protests that they have talked privately about getting together again, that they have recently talked publicly about their lawsuits, and that they now plan a reunion concert. plaintiffs' own allegations show beyond any doubt that they abandoned the Ripples and Waves name many years ago. See Silvermanv. CBS Inc., 870 F.2d 40, 47-48 (2d Cir. 1989) (finding that "Amos'n' Andy" mark had been abandoned); AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1550 (11th Cir. 1986) (finding abandonment as a matter of law, and subsequent effort to resume use of mark could not revive rights in the mark); American Photographic Pub. Co. v. Ziff-Davis Pub. Co., 135 F.2d 569, 574 (7th Cir. 1943) (affirming dismissal where defendant used same name of magazine that had stopped publishing 20 years earlier).
Plaintiffs also rely on the generous standard that applies to a motion to dismiss. When considering a motion to dismiss, the court must ask whether plaintiffs could prevail under any set of facts consistent with their allegations. However, if plaintiffs provide the specifics of their claims in their complaint and those facts show that they are not entitled to relief, they can in effect plead themselves out of court. See, e.g., Khuans v. School Dist 110, 123 F.3d 1010, 1016 (7th Cir. 1997) (affirming dismissal of First Amendment claim); Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 474 (7th Cir. 1997) (affirming dismissal of civil rights claim). Pleading specifics, and in this case attaching the trade dress at issue, may serve the beneficial purpose of avoiding prolonged litigation that is destined, as a matter of law, not to succeed. See, e.g., Zehner v. Trigg, 952 F. Supp. 1318, 1322 n. 2 (S.D. Ind. 1997) (plaintiffs' candor in complaint and briefing avoided waste of time and allowed decision under Rule 12(b)(6)), aff'd, 133 F.3d 459 (7th Cir. 1997).
With the possible exception of the statute of limitations issue, UMG's arguments for dismissal of the Lanham Act claim all have merit. None of plaintiffs' responses has overcome the individual legal barriers referred to in UMG's brief, nor does their response reach the core of the defense to the Lanham Act claim. For in addition to the particular merit of each of UMG's arguments, in the aggregate they point to the major flaw in plaintiffs assertion of such a claim. The claim does not fit the purpose of the statute. Plaintiffs rely on Section 43 of the Lanham Act, 11 U.S.C. § 1125(a), as the basis for their claim. The Lanham Act was passed to help prevent unfair competition and trade dress. It represents an attempt to thwart any effort by commercial parties to confuse or mislead a consumer with respect to the origin, nature, performance, characteristics, sponsorship or endorsement of a product. However, the Act is for the protection of commercial parties and is not meant to provide the consumer with a cause of action. Serbin v. Ziebart Intl Corp., 11 F.3d 1163 (3rd Cir. 1993). The Act offers protection to competitors from unfair competition through deceptive trade dress or usurpation of a trademark. Two Pesos, Inc. v. Taco. Cabana, Inc., 505 U.S. 763, 767-68 (1992). It can also form the basis for assisting a person or entity (typically a celebrity or a well known organization) in pursuing a claim of false endorsement or sponsorship. See, e.g., Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1107 (9th Cir. 1992).
"Plaintiffs rely on the following statutory language:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which —
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
In this case, plaintiffs are not competitors or commercial parties of any sort. For many years Ripples and Waves had no longer existed as a musical group, and there is no indication that the individual plaintiffs remain actively involved in the music business. There is no suggestion of false endorsement or sponsorship. It appears that someone made a mistake of fact in researching or providing biographical information. Whether that mistake was negligent or intentional, there is no advantage gained or dilution of someone else's mark or market share. Unlike the Northern District litigation, there is no allegation that the product itself, the recorded songs on the CD, is not what it is said to be — songs performed by the Jackson 5. And at a most basic level, it is absurd to suggest that the Jackson 5 or their record company intended to gain some type of commercial advantage by attempting to confuse the music-buying public into believing they might be purchasing a product that has some connection with the plaintiffs. The facts, as pleaded in detail, rule out any successful Lanham Act claim.
C. Common Law Claims
Plaintiffs' common law claim for unfair competition fails for similar reasons. Indiana recognizes a property right in the goodwill and reputation a person develops in a business, and consequently also recognizes a common law action to protect such interests. Hammons Mobile Homes, Inc. v. Laser Mobile Home Transport, Inc., 501 N.E.2d 458, 460-61 (Ind.App. 1986). Unfair competition in Indiana consists of passing off, or attempting to pass off, the goods or services of one person as the goods or services of another. Beacham v. Macmillan, Inc., 837 F. Supp. 970, 977 (S.D. Ind. 1993). A court should analyze an Indiana common law action for unfair competition in the same manner as a Lanham Act claim. CFM Majestic, Inc. v. NHC, Inc., 93 F. Supp.2d 942, 950 n. 20 (N.D. Ind. 2000). In this case, the facts as pleaded by plaintiffs make it clear that plaintiffs are not competitors of the Jackson 5 or UMG, and that the use of the name Ripples and Waves in the trade dress of the CD could not possibly be conceived as an attempt to "pass off the work as that of the plaintiffs.
The claim for "civil aiding and abetting" is not a recognized cause of action in Indiana, and the civil conspiracy claim cannot stand on its own. Absent some type of tortious conduct, no independent claim for damages from a civil conspiracy can survive. Winkler v. V.G. Reed Sons, Inc., 638 N.E.2d 1228, 1234 (Ind. 1994). Since the Lanham Act and unfair competition claims do not survive UMG's motion, the conspiracy claim must fail as well.
That leaves the equitable claim of unjust enrichment. Plaintiffs have actually asserted two separate unjust enrichment claims. The first is for money received in connection with the sale of the CD, which has been brought against all defendants, including UMG. The second is for usurpation of goodwill and history, which contains allegations only against defendants Michael Jackson and the Jackson 5. To the extent plaintiffs believe the later count applies to UMG as well, the allegations are clearly insufficient on the face of the Amended Complaint to support such a claim. With respect to the claim against UMG for unjust enrichment resulting from receipt of profits from the sale of the CD, that too must fail. There is no Lanham Act violation and, unlike the Northern District litigation where there is a claim that Ripples and Waves recordings were actually included on the Jackson 5 CD, it cannot be reasonably asserted that any monies received from the sale of the CD were the result of the efforts or goodwill of the plaintiffs. Consequently, on the face of the allegations contained in the Amended Complaint, the unjust enrichment claim fails as a matter of law.
Conclusion
Even without inclusion in the Amended Complaint of the details surrounding the manner in which the words Ripples and Waves were used in connection with the CD, a claim that the members of the Jackson 5 and its record company attempted to trade on the name and reputation of a regional musical group that has been defunct for over 15 years should draw some skepticism from anyone with even slight exposure to popular music over the past 35 years. As shown by the allegations in the Northern District litigation, there are times when mistakes in identification, negligent or intentional, can lead to legitimate claims involving copyrighted works that must be heard and resolved. In this case, however, the court is faced not with allegations of someone passing off the songs or performances of one group as that of another. The claim is that the use of "Ripples and Waves" as a phrase in a CD title and the inclusion in liner notes of a misidentification of the performing group in its early years have damaged a long since retired group of musicians, once know as Ripples and Waves, who have no recordings on the market. As a matter of law, the complaint is insufficient to survive the two motions to dismiss.
Accordingly, Michael Jackson's motion to dismiss for lack of personal jurisdiction is granted. Plaintiffs' motion to strike the declaration of Michael Jackson is denied. Plaintiffs' motion for leave to file a surreply, motion for leave to file supplemental response and motion to amend supplemental response are all denied. UMG's motion to dismiss is granted on the ground that the amended complaint fails to state a claim against UMG upon which relief may be granted. However, plaintiffs are entitled to an opportunity to cure the problems in the Amended Complaint relevant to their claims against UMG, if they can do so consistent with Rule 11. They may file a second amended complaint no later than April 30, 2004, if they wish to do so.
So ordered.