GREENBERG TRAURIG, LLP IAN C. BALLON (SBN …Case No.: 5:17-cv-000436 NC Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG

Case No.: 5:17-cv-000436 NC Motion for Summary Judgment

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GREENBERG TRAURIG, LLP IAN C. BALLON (SBN 141819) [email protected] NINA D. BOYAJIAN (SBN 246415) [email protected] 1900 University Avenue, 5th Floor, East Palo Alto, CA 94303 Telephone: 650-328-8500; Facsimile: 650-328-8508

Attorneys for defendant Citizen Watch Company of America, Inc.

Seth Presser (NY SBN 4554713) (admitted Pro Hac Vice) [email protected] The Empire State Building 350 Fifth Avenue, 29th Floor, New York, NY 10118 Telephone: 212-497-9795


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA - SAN JOSE DIVISION

COLONEL DAVID RANDOLPH SCOTT,

Plaintiff, vs.

CITIZEN WATCH COMPANY OF AMERICA, INC., a California Corporation (Successor to Bulova Corporation, a New York corporation); STERLING JEWELERS, INC. dba KAY JEWELERS, a Delaware Corporation; and DOES 1 through 99, inclusive,

Defendants.

CASE NO.: 5:17-cv-000436 NC

DEFENDANT CITIZEN WATCH COMPANY OF AMERICA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56(a); MEMORANDUM OF POINTS AND AUTHORITIES

[Declarations of Christopher Napolitano, Nina D. Boyajian, and Proposed Order Filed Concurrently]

Date: December 6, 2017 Time: 1:00 p.m. Courtroom: 7 Judge: Hon. Nathanael Cousins

Action Filed: January 27, 2017

Case 5:17-cv-00436-NC Document 81 Filed 10/30/17 Page 1 of 34

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Motion for Summary Judgment

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Table of Contents

Page

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT .................................................. 1

STATEMENT OF RELIEF SOUGHT ......................................................................................................... 1

MEMORANDUM OF POINTS AND AUTHORITIES .............................................................................. 1

I. INTRODUCTION ........................................................................................................................... 1

II. UNDISPUTED FACTS ................................................................................................................... 3

A. The Bulova Tradition Of Supreme Quality Timepieces ........................................................ 3B. The Original Lunar Watch .................................................................................................... 3C. Plaintiff Auctions The Original Lunar Watch In 2015 For $1.625 Million ............................ 3D. Bulova’s Commemorative Lunar Watch .............................................................................. 4

1. Materials Describing The Commemorative Lunar Watch Make Historical References To Plaintiff ............................................................................................. 4

a. Bulova’s Booklets Enclosed In The Box Of The Commemorative Lunar Watch Make Mere Incidental And Historical Uses Of Plaintiff’s Title And Obscured Photograph ................................................... 5

b. Bulova’s Video Describing The Lunar Watches Uses Two-Seconds Of Plaintiff’s Unidentifiable Voice ............................................................... 6

c. Online Watch Descriptions Make Incidental And Historical Use Of Plaintiff’s Name ........................................................................................... 7

III. PROCEDURAL POSTURE ............................................................................................................ 8

IV. LEGAL STANDARD ...................................................................................................................... 8

V. ARGUMENT .................................................................................................................................. 9

A. Plaintiff’s Claim For Invasion Of Privacy As An Alleged Misappropriation Of Name Or Likeness Is Duplicative And Meritless ............................................................................ 9

B. Plaintiff’s Claims For Common Law And Statutory Right Of Publicity Violations Fail As A Matter Of Law...................................................................................................... 9

1. Bulova’s Use Was Incidental, And Hence Not Actionable ...................................... 102. The Booklets And Online Watch Descriptions Are Protected By The First

Amendment Because They Are Transformative Works In The Public Interest ........ 13

a. The Booklets And Online Watch Descriptions Describe An Issue Of Public Interest: The Apollo 15 Mission, Moon Landing, And The Historical Feat Of Bulova’s Original Lunar Watch ..................................... 14

b. The Booklets, Online Watch Descriptions, And Video Contain Significant Transformative Elements .......................................................... 16


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3. Plaintiff’s Section 3344 Claim Is Also Not Actionable Because The Use Concerns “Public Affairs” ...................................................................................... 18

4. Plaintiff’s Section 3344 Claim Is Not Actionable Because Plaintiff Is Not “Readily Identifiable” From The Photograph .......................................................... 19

C. Bulova Is Entitled To Summary Judgment On Plaintiff’s Purported Lanham Act Claims ................................................................................................................................ 20

1. Bulova’s Use Was A Nominative Fair Use ............................................................. 202. It Is Indisputable That Bulova Did Not Make Any Use That Is Likely To

Cause Consumer Confusion Or Make Any Misrepresentations ............................... 22

a. The Likelihood Of Confusion Is Non-Existent ........................................... 22b. Plaintiff Cannot Prove That Bulova Made Any False Statement ................. 24

3. Neither Plaintiff Nor Bulova Has Made Any Trademark “Use” Of Plaintiff’s Identity ................................................................................................................... 24

D. Bulova Is Entitled To Summary Judgment On The Remainder Of Plaintiff’s “Not Necessary” Claims For Alleged Emotional Distress And Negligence ................................. 25

1. Bulova Is Entitled To Summary Judgment On Both Of Plaintiff’s Emotional Distress Claims As There Is No Evidence Of Outrageous Conduct Or Any “Special Relationship” Between Bulova And Plaintiff ............................................ 26

2. Bulova Is Entitled To Summary Judgment On Plaintiff’s Negligence Claim Because It Is Duplicative Of His Other Claims ....................................................... 27

VI. CONCLUSION ............................................................................................................................. 28


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TABLE OF AUTHORITIES

Federal Cases

Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996) ................................................................................................................ 16

Aldrin v. Topps Co., Inc., No. CV 10-09939 DDP (FMOX), 2011 WL 4500013 (C.D. Cal. Sept. 27, 2011) ...................... 15, 16

Aligo v. Time-Life Books, Inc., No. C 94-20707 JW, 1994 WL 715605 (N.D. Cal. Dec. 19, 1994) .............................................. 11, 12

AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) .............................................................................................................. 23

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................................................................................................. 8

Annamaria M v. Napa Valley Unified School Dist., No. C 03-0101 VRW, 2006 WL 1525733 (N.D. Cal. May 30, 2006) ................................................ 28

Baugh v. CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993) ................................................................................................. 9, 18

Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002) ...................................................................................................... 21, 22

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................................................................. 8

Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090 (N.D. Cal. 2011) .............................................................................................. 25

Davis v. Electronic Arts Inc., No. 10-CV-03328-RS, 2017 WL 3335758 (N.D. Cal. Aug. 4, 2017) .................................... 10, 19, 20

Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001) .............................................................................................................. 10

ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003) .............................................................................................................. 17

Galen v. Cnty. of Los Angeles, 477 F.3d 652 (9th Cir. 2007) ................................................................................................................ 8

Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) ............................................................................................................................ 15

Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010) ............................................................................................ 13, 14, 15, 17

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) .............................................................................................................................. 27

Laws v. Sony Music Ent., Inc., 448 F.3d 1134 (9th Cir. 2006) ............................................................................................................ 10


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Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017) ............................................................................................................ 10

New Kids on the Block v. News America Pub., Inc., 971 F.2d 302 (9th Cir. 1992) .................................................................................................. 18, 21, 22

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ............................................................................................................................ 27

Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998) .................................................................................................. 19, 26, 27

Page v. Something Weird Video, 960 F. Supp. 1438 (C.D. Cal. 1996) ................................................................................................... 10

Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1222 (N.D. Cal. 2014) ................................................................................................ 11

Playboy Enterprises, Inc. v. Welles, 279 F.3d 796 (9th Cir. 2002) ........................................................................................................ 22, 25

Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012) ............................................................................................................ 24

Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (9th Cir. 1997) ............................................................................................................ 24

Volkswagenwerk Aktiengesellschaft v. Church, 411 F.2d 350 (9th Cir. 1969) .............................................................................................................. 21

Waits v. Frito–Lay, Inc., 978 F.2d 1093 (9th Cir.1992) ............................................................................................................. 25

White v. Samsung Electronics. America., Inc., 971 F.2d 1395 (9th Cir. 1992) ............................................................................................................ 20

Wong v. Golden State Auction Gallery, Inc., No. 14-CV-00999-EMC, 2016 WL 829073 (N.D. Cal. Mar. 3, 2016)......................................... 11, 12

Yeager v. Cingular Wireless LLC, 673 F. Supp. 2d 1089 (E.D. Cal. 2009)............................................................................................... 16

Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) ............................................................................................................................ 10

State Cases

Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493 (1970) ........................................................................................................................... 26

Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001) ...................................................................................................... 13, 14, 16, 17

Daniel v. Wayans, 8 Cal. App. 5th 367 (2017) ................................................................................................................. 26

Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536 (1993) ................................................................................................... 13, 14, 18


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Erlich v. Menezes, 981 P.2d 978 (Cal. 1999) .................................................................................................................... 27

Gill v. Hearst Publishing Co., 40 Cal. 2d 224 (1953) ......................................................................................................................... 13

Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001) ............................................................................................. 13, 14, 15, 18

Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860 (1979) ................................................................................................................... 13, 14

Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228 (2005) ........................................................................................................... 26

Kirby v. Sega of Am., Inc., 144 Cal. App. 4th 47 (2006) ........................................................................................................... 9, 14

Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995) ................................................................................................... 10, 13, 18

Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993) .............................................................................................................. 26, 27

Winter v. DC Comics, 30 Cal. 4th 881 (2003) ........................................................................................................................ 14

Federal Statutes

15 U.S.C. § 1125(a)(1) .............................................................................................................................. 22

15 U.S.C. § 1125(a)(1)(B) ........................................................................................................................ 24

Fed. R. Civ. P. 56(a) ............................................................................................................................... 1, 8

Fed. R. Civ. P. 56(e) ................................................................................................................................... 9

State Statutes

Cal. Code Civ. Proc. § 3344 ................................................................................................... 10, 18, 19, 20

Cal. Code Civ. Proc. § 3344(a) ................................................................................................................. 10

Cal. Code Civ. Proc. § 3344(b) ................................................................................................................. 19

Cal. Code Civ. Proc. § 3344(d) ............................................................................................................. 2, 18

Other Authorities

6 Witkin, Summary of Cal. Law (9th ed. 1988) ........................................................................................ 26

Of The Essence, Black’s Law Dictionary (10th ed. 2014) .......................................................................... 5

1 Nimmer on Copyright § 1.01[B][3][b][iv] (2017) ................................................................................. 10

Restatement (Second) of Torts § 652C cmt. d .......................................................................................... 10

Restatement (Second) of Torts § 838........................................................................................................ 26


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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that, on December 6, 2017 at 1:00 p.m. in Courtroom 7, 4th Floor of the

above-captioned Court, located at 280 South 1st Street, San Jose, CA 95113, defendant Citizen Watch

Company of America, Inc., successor by merger to Bulova Corporation (collectively, “Bulova”) will and

hereby does move pursuant to Federal Rule of Civil Procedure 56(a) for summary judgment on each claim of

the First Amended Complaint (“FAC”).

Bulova’s Motion is made on the grounds that there is no genuine dispute on any material fact on each

of plaintiff’s eight remaining claims for relief, and the undisputed facts mandate that summary judgment be

entered in Bulova’s favor. All of plaintiff’s right of publicity/privacy claims fail because the use of small

fragments of plaintiff’s identity are incidental to the works as a whole, the use is protected by the First

Amendment because it concerns matters of public interest, and plaintiff is not readily identifiable from the

uses at issue.

Plaintiff’s purported Lanham Act claims fail because any use made by Bulova was a nonactionable

nominative fair use, Bulova did not make any false or misleading statement or any statement that is likely to

confuse consumers, and no trademark “use” was made of plaintiff’s identity (such that any reasonable

consumer would assume sponsorship or endorsement).

The remainder of plaintiff’s ancillary claims—which the Court has already characterized as “not

necessary”—are similarly meritless. Plaintiff’s emotional distress claims are utterly unsupported by the facts

or law, and plaintiff’s standalone negligence claim fails for the same reasons, and it is merely duplicative of

his other claims.

This Motion is based on this Notice, the attached Memorandum of Points and Authorities, the

concurrently filed Declarations of Christopher Napolitano and Nina D. Boyajian, and the documents

attached thereto, and on any other matter the Court may properly consider.

STATEMENT OF RELIEF SOUGHT

Bulova seeks summary judgment on each claim alleged in the FAC.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION


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The material facts in this case are few, and not in dispute. In introducing and providing the history of

the commemorative edition of the Bulova watch plaintiff wore during the Apollo 15 mission, Bulova

identified plaintiff as the mission commander of Apollo 15, included a photograph of an astronaut—in full

space suit, with a helmet and visor completely obscuring the astronaut’s face—and used two unrecognizable

seconds of plaintiff’s voice from a NASA recording. Plaintiff’s actual name was used once in an online

description of the watch, which conveyed the historical fact that plaintiff wore the original watch. No

photographs of plaintiff were used whereby plaintiff can be readily (or at all) identified.

Plaintiff claims that these undisputed facts constitute violations of his publicity rights and the

Lanham Act, and caused him “severe mental anguish and emotional distress” (FAC ¶ 30) and “humiliation,

mental anguish, worry, and outrage.” FAC ¶ 52. But Bulova’s limited, historically significant, factual

identification of plaintiff as the individual who wore Bulova’s watch on the Apollo 15 mission—the only

reference to plaintiff’s identity at issue in this lawsuit—cannot give rise to any liability. Bulova does not

diminish plaintiff’s contributions to American space exploration—or even contest his right to personally

profit from the watch that was gifted to him by Bulova; but plaintiff is not entitled to a commission for

wearing a Bulova watch and is overreaching with this lawsuit.

First, plaintiff cannot prevail on any of his right of publicity claims1 because the limited use of

plaintiff’s name, title, unidentified voice, and/or obscured photograph were merely incidental. The publicity

claims are further barred by the First Amendment because Bulova’s reference to plaintiff as the astronaut

who wore a Bulova watch on the moon is a matter of public interest, and the use was transformative in that

the value of the works do not derive from plaintiff, but rather, from the watches themselves. Plaintiff’s

statutory right of publicity claim further fails because speech concerning space exploration in general, and

the story of the original timepiece specifically, are indisputably subject to the “public affairs” exemption of

Cal. Civ. Code § 3344(d), and plaintiff is not “readily identifiable” from the photograph of a person in a full

spacesuit, whose face is obscured by a helmet and visor.

1 Plaintiff has taken the position that his first claim for relief, “Invasion of Right of Publicity Through Commercial Appropriation of Name and Likeness,” is for “misappropriation of a person’s name or likeness,” which plaintiff has identified as having the exact same elements as his second claim, alleged violation of his common law right of publicity. Plaintiff’s Opposition to Defendants’ Motion to Dismiss Claims 1-3 and 5-9 of the First Amended Complaint Pursuant to Fed. R. Civ. Proc. 12(b)(6) (“Opp.”) at 7:15-18, 8:8-10 [Dkt. 39].


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Next, Bulova is entitled to summary judgment on both of plaintiff’s Lanham Act claims because: (1)

the use at issue was a nominative fair use; (2) Bulova did not make any misrepresentations or use that is

likely to confuse consumers, as required to prove a violation of Section 43(a)(1) of the Lanham Act; and (3)

there is no trademark “use” of plaintiff’s name or other elements of his identity by either plaintiff or Bulova.

Indeed, plaintiff’s own documents demonstrate that it is virtually impossible to describe and historically

contextualize Bulova’s commemorative watch without referencing its history, which happens to include

plaintiff.

Finally, the remainder of plaintiff’s ancillary claims—which this Court urged plaintiff to voluntarily

dismiss—are similarly meritless. Plaintiff’s emotional distress claims are utterly unsupported by any fact or

law. Plaintiff cannot prove that a passive, factual reference to his name, title, two seconds of audio, and use

of an obscured photo in connection with a historical event constitutes “outrageous” behavior that caused him

“serious” or “severe” distress. For these same reasons, plaintiff’s negligence claim also fails, as it is merely

duplicative of his other claims.

II. UNDISPUTED FACTS

A. The Bulova Tradition Of Supreme Quality Timepieces

In 1875, Joseph Bulova opened a small store in New York City that would mark the beginning of his

lifelong quest: to craft supreme quality timepieces for an ever-changing and dynamic landscape. Declaration

of Christopher Napolitano (“Napolitano Decl.”) ¶ 3. Bulova’s breakthroughs would change the face of

marketing in America and extended into collaborations with Lindbergh and on 46 NASA space missions. Id.

During the first moonwalk, a Bulova timer was even placed in the Sea of Tranquility on the moon. Id.

B. The Original Lunar Watch

During training for the Apollo 15 mission, representatives of Bulova gifted to plaintiff two Bulova

timepieces—a stop watch and a chronograph wrist watch (“Original Lunar Watch”)—which were

comparable to the watches NASA was using at the time—so that he could evaluate their performance.

Declaration of Nina D. Boyajian (“Boyajian Decl.”) Ex. 6 at 122:22-25, 124:14; id. at Ex. 11.2

C. Plaintiff Auctions The Original Lunar Watch In 2015 For $1.625 Million

2 Bulova incorporates by reference the further, non-material, background information regarding the Apollo 15 mission provided in its motion to dismiss at 4:3-18 [Dkt. 30].


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Despite his Senate testimony, in which he testified that he did not want to see the commercialization

of the Original Lunar Watch, over the years, plaintiff provided various auction houses with dozens of items

from his space missions, including the Original Lunar Watch, to sell for his personal benefit. Id. Exs. 7-10.

In September 2015, plaintiff, through RR Auction, began to promote the auction of the Original Lunar

Watch. Id. Exs. 7-8. To that end, plaintiff authorized the creation of a 21-page color catalogue, which details

how plaintiff wore the watch on the Apollo 15 mission and includes a lengthy statement from him certifying

the authenticity of the watch. The catalogue also reproduces a number of photos of plaintiff from the

mission, including many close-ups of his face without a helmet/visor and of the watch itself. Id. Ex. 8.

Bidding on the Original Lunar Watch began on October 15, 2015, with a starting bid of $50,000. On October

22, 2015, plaintiff sold the Original Lunar Watch for $1.625 million (id. Ex. 9), and that year alone,3 he

earned a total of $1,381,873 in income from auction sales of other space memorabilia. Id. Ex. 15 (Second

Amended Response to Interrogatory No. 9).

D. Bulova’s Commemorative Lunar Watch

In and around autumn 2014, Bulova decided to create a watch to commemorate the Original Lunar

Watch. Napolitano Decl. ¶ 4. The Lunar Pilot Chronograph (“Commemorative Lunar Watch”) is an external

replica of the Original Lunar Watch, updated with Bulova’s more recent technological advances in timing

and accuracy. The Commemorative Lunar Watch was designed to celebrate the use of the Original Lunar

Watch on the moon and Bulova’s history of collaboration with NASA in the United States’ space efforts

from the 1950s to the 1970s. The Commemorative Lunar Watch was not designed to be—nor was it—

associated with any particular individual who may have used Bulova timepieces during space missions. Id.

1. Materials Describing The Commemorative Lunar Watch Make Historical References To Plaintiff

In early 2016, Bulova began to market its Commemorative Lunar Watch. Napolitano Decl. ¶ 5. As

described below, all of the materials created in connection with the Commemorative Lunar Watch recounted

the historical feat of Bulova’s Original Lunar Watch and provided extensive technical specifications

regarding the Commemorative Lunar Watch. They also make passive references to the Original Lunar

3 While plaintiff earned the largest amount from the sale of space memorabilia in 2015, there were several other individual years where he earned large amounts (i.e., $760,667 in 2014 and $665,969 this year, as of October 4, 2017). Boyajian Decl. Ex. 15 (Second Amended Response to Interrogatory No. 9).


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Watch and/or plaintiff.

a. Bulova’s Booklets Enclosed In The Box Of The Commemorative Lunar Watch Make Mere Incidental And Historical Uses Of Plaintiff’s Title And Obscured Photograph

In the box of the Commemorative Lunar Watch—viewable to consumers who have already

purchased the watch—Bulova encloses a booklet that provides the purchaser with the history and

specifications of both the Original Lunar and the Commemorative Lunar Watches. Napolitano Decl. ¶ 6. In

the first version of the booklet included with the Commemorative Lunar Watch (“Original Booklet”), the

only image of plaintiff that appeared is one that shows an unidentified person in a full spacesuit, face

completely obscured by a visor and helmet, along with the Lunar Rover, which was used on several NASA

missions. Napolitano Decl. ¶ 6 & Ex. 1 at 7; see also Boyajian Decl. Ex. 12.

The Original Booklet makes no commercial use of plaintiff’s name or likeness, and any reference to

plaintiff was, at best, incidental. Rather, it simply conveyed the historical fact that “Apollo 15’s mission

commander, the seventh man to walk on the moon and the first to drive the Lunar Rover,4 wore his

personally-gifted Bulova moon pilot chronograph.” Napolitano Decl. ¶ 6 & Ex. 1 at 7. Notably, the Original

Booklet only references plaintiff by the NASA title, “mission commander”5—not his name. Napolitano

Decl. ¶ 6 & Ex. 1 at 7.

After being notified that plaintiff had seen the Original Booklet and took issue with it, Bulova, while

maintaining that no element of the Original Booklet was infringing in any way, voluntarily revised the

booklet to omit the reference to “mission commander.” Napolitano Decl. ¶ 7. The revised booklet (“Revised

Booklet”) simply states: “The Bulova moon pilot chronograph, worn during the Apollo 15 moon landing . . .

. ” Napolitano Decl. ¶ 7 & Ex. 2 at 7. Nowhere in either the Original Booklet or the Revised Booklet is there

4 While plaintiff has argued that the description of plaintiff as “the seventh man to walk on the moon and the first to drive the Lunar Rover” ([Dkt. 39] Opp. at 4:1-2) violates his publicity rights, Bulova submits that it is obvious that such information is not known to any ordinary consumer, and is in any event, purely factual and historical. 5 Plaintiff claims that he is recognizable through the use of the title “mission commander” ([Dkt. 39] Opp. at 3:23-24) as though any person who is not an avid NASA/space enthusiast would know who the mission commander of the Apollo 15 was. Moreover, plaintiff does not own the title “Mission Commander,” and there have been several other NASA mission commanders. Boyajian Decl. Ex. 13. It is even less likely that anyone would know—particularly from a black and white photograph—that a “red stripe on the sleeve of Plaintiff’s Apollo 15 space suit…is reserved for Mission Commanders” ([Dkt. 39] Opp. at 4:23-25) or that plaintiff stated, at some point during the Apollo 15 mission, the well-known English language expression and legal term of art, “time is of the essence.” Of The Essence, Black’s Law Dictionary (10th ed. 2014).


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any mention of plaintiff’s name or an image that readily identifies him. Napolitano Decl. ¶¶ 6-8, Exs. 1, 2.

It also bears noting the size of the materials at issue: the Booklets (both Original and Revised) are

only 4 inches by 2 and 3/4 inches, and the photographs of the astronauts depicted are 1.25 by 2 inches (with

the astronaut figures accounting for a fraction of that space). As the Court can observe, this image could be

of any astronaut, actor, or computer-generated image of a man or woman in a space suit—not an image that

is “readily identifiable” as plaintiff. The actual size of the Booklets is below:

Napolitano Decl. Ex. 1 at 13; id. Ex. 2 at 13. While the Booklets provided extensive details about the

technical specifications of both the Original Lunar Watch and the Commemorative Lunar Watch, they were

also meant to be—and clearly are—a creative work, as can be seen upon viewing and reading the Booklets.

Napolitano Decl. ¶ 9, Exs. 1, 2. Bulova intended for the Commemorative Lunar Watch to be special and

meaningful to consumers, and the Booklets were specially created to celebrate Bulova’s history and add to

the meaning of the watch. For this reason, Bulova created packaging specifically for the Commemorative

Lunar Watch, rather than using the general packing that it uses in most other collections. Napolitano Decl. ¶

9.

b. Bulova’s Video Describing The Lunar Watches Uses Two-Seconds Of Plaintiff’s Unidentifiable Voice

In late 2016, Bulova created a 79-second video describing the Commemorative Lunar Watch and its

historical inspiration (“Video”). Napolitano Decl. ¶ 10. Of the 79 seconds of the Video, one sentence

fragment, comprised of six words (“and we have a roll program”), is spoken by an unidentified individual,

who apparently is plaintiff. Id. Bulova acquired the audio used in the Video from Dan Beaumont Space


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Museum, Apollo 15 launch LIVE, W. Cronkrite: “Wow ! Our building’s shaking, here again!” CBS, July 26,

1971, YOUTUBE.COM (Sept. 13, 2013), https://www.youtube.com/watch?v=OwMehQl04Mc, a publicly-

available recording that has over 17,500 views and does not identify plaintiff as the speaker of any audio

used. In order for any person to ascertain the speaker of each portion of the Video clip (there are several

unidentified speakers), that person would have to—as plaintiff apparently did months after filing this

lawsuit—locate the public transmission from NASA and listen to approximately 30 minutes of audio, and

then retrieve the—again public—transcript of the recording from NASA, only to then determine that the

speaker of those six words was plaintiff. Boyajian Decl. Ex. 14.

c. Online Watch Descriptions Make Incidental And Historical Use Of Plaintiff’s Name

To provide historical context to online customers, Bulova provided to its downstream retailers, like

defendant Sterling Jewelers Inc. (“Sterling”), a factually accurate description of the Commemorative Lunar

Watch as having “tak[en] inspiration from astronaut Dave Scott’s personal Bulova chronograph worn during

the Apollo 15 moon landing,” that Sterling displayed on its website. Napolitano Decl. ¶ 11 & Ex. 3 (“First

Online Watch Description”). On its own website, Bulova originally included a description of the

Commemorative Lunar Watch that stated: “After Apollo 15’s mission commander made lunar history—

while wearing his personal Bulova chronograph—we’re making history again. The Bulova Moon Watch

replicates that original timepiece . . . .” Napolitano Decl. ¶ 12 & Ex. 4 (“Second Online Watch Description”).

After plaintiff complained that the historical reference to him having worn the watch violated his

privacy and publicity rights and filing this lawsuit, Bulova—again without conceding that such use was in

anyway infringing—updated the copy for its downstream retailers and revised the copy on its own website to

remove plaintiff’s title and simply state: “Bulova made space history on August 2, 1971- during the Apollo

15 mission, a moon pilot chronograph, customized for lunar conditions by Bulova engineers, was worn on

the moon.” Napolitano Decl. ¶ 13 & Ex. 5. (“Third Online Watch Description”).

No identifiable references to plaintiff remain in the revised materials—not even to the NASA title—

beyond the image of him in a full space suit, which does not identify him, as his face is obscured by a helmet

and visor, and two seconds of audio that could be any one (including ground control) involved in the launch

of Apollo 15. It is for this reason that plaintiff feels compelled to draw multiple elements from three different


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sets of materials to argue that he has a viable claim. If plaintiff’s claims had merit, he would not need to go to

such lengths to draw on a list of so many inconspicuous details (e.g., a red stripe on the sleeve of the space

suit of the unidentifiable astronaut in the 1.25 by 2 inch black and white photograph) to create the illusion

that his likeness was readily identifiable.

III. PROCEDURAL POSTURE

This Court advised plaintiff, in no uncertain terms, that he should amend his FAC to “get it down to

five” claims, and “encourage[d] [him] to get it to fewer than five.” Dkt. 65 24:21-22. The Court counseled

plaintiff that keeping “the four or six” of his claims that are “not necessary” would “make[] the proceedings

more complicated, expensive, time consuming, and the recovery for [his] nine causes of action [would] be

largely over lapping, duplicative.” Id. at 12:24-13:7. The Court also expressed a hope that plaintiff would

“use a further amended complaint as an opportunity to . . . clarif[y]” and “prioritize” his claims. Id. at 24:4-7.

Notwithstanding the Court’s recommendation, plaintiff declined to amend his FAC in any way [Dkt.

66], maintaining the eight claims that remained after the Court dismissed his claim for unjust enrichment

with prejudice. Dkt. 62.

IV. LEGAL STANDARD

Summary judgment is proper where, as here, the pleadings, discovery, and affidavits show there is

“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See

Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party. See id. Bald assertions that

genuine issues of material fact exist are insufficient. Galen v. Cnty. of Los Angeles, 477 F.3d 652, 658 (9th

Cir. 2007).

A court shall grant summary judgment “against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial[,] . . . since a complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial.” See Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986). The moving party bears the initial burden of identifying those portions of the

record that demonstrate the absence of a genuine issue of material fact. Id. The burden then shifts to the


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nonmoving party to “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for

trial.’” See id. at 324 (citing Fed. R. Civ. P. 56(e)).

V. ARGUMENT

A. Plaintiff’s Claim For Invasion Of Privacy As An Alleged Misappropriation Of Name Or Likeness6 Is Duplicative And Meritless

Plaintiff asserts that his second cause of action—“Invasion of Right of Privacy”—is the “fourth type”

of invasion of privacy as enumerated by Dean Prosser, i.e., “misappropriation of a person’s name or

likeness.” [Dkt. 39] Opp. at 6. If so, then plaintiff’s second cause of action is entirely duplicative of his first

cause of action and must be dismissed. See Kirby v. Sega of Am., Inc., 144 Cal. App. 4th 47, 54 (2006) (“In

the context of a celebrity, the ‘invasion of privacy’ tort for appropriation turns on a right of publicity arising

from commercially exploitable opportunities embodied in the plaintiff’s likeness.”) (quoting Baugh v. CBS,

Inc., 828 F. Supp. 745 (N.D. Cal. 1993)). Indeed, plaintiff’s enumeration in his opposition to the motion to

dismiss of the elements of both claims is identical. Compare [Dkt. 39] Opp. 7:15-18 with 8:8-10.7 Because a

claim for a violation of right of publicity under California common law is the same as a claim for

misappropriation of a person’s name or likeness, the claims are duplicative and, for the reasons set forth

below, meritless.

B. Plaintiff’s Claims For Common Law And Statutory Right Of Publicity Violations Fail As A Matter Of Law

Bulova is entitled to summary judgment on plaintiff’s common law and statutory right of publicity

claims for any one or all of the following reasons: (1) the use was incidental (at best); (2) the speech at issue

is protected by the First Amendment because it concerns matters in the public interest and is transformative;

6 Because plaintiff has argued that his first claim is for misappropriation of a person’s name or likeness, rather than another type of privacy claim, he can no longer claim any other type of privacy violation. 7 It is also telling that plaintiff does not cite a single case in support of his argument that this is an independent cause of action, or that he has met each (or any) of the requirements of the claim. Rather, plaintiff stated in conclusory fashion that the claim is “distinguishable from Plaintiff’s first cause of action for common law right of publicity in that it does not require ‘commercial’ use of the Plaintiff’s name and likeness” ([Dkt. 39[Opp. at 7:24-26), despite the fact that in enumerating the elements of both causes of action, plaintiff cites law providing that the use can be “commercial or otherwise.” Compare [Dkt. 39] Opp. 7:15-18 with 8:8-10.


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(3) the materials concern “public affairs”; and (4) plaintiff is not readily identifiable from any of the

materials.

To prevail on a claim for a violation of the common law right of publicity, a plaintiff must

demonstrate (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or

likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.

Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001); Montana v. San Jose Mercury News,

Inc., 34 Cal. App. 4th 790, 792 (1995).

With regard to the statutory claim, Civil Code § 3344 complements, rather than codifies, the

common law action—it affords a narrower claim than the common law’s protection of identity. Laws v. Sony

Music Ent., Inc., 448 F.3d 1134, 1139 (9th Cir. 2006); Page v. Something Weird Video, 960 F. Supp. 1438,

1443 (C.D. Cal. 1996). Specifically, Section 3344(a) provides that a person or entity may be liable for

commercial misappropriation if it “knowingly uses another’s name, voice, signature, photograph or likeness

in any manner, on or in products, merchandise, or goods or for purposes of advertising or selling, or

soliciting purchases of products, merchandise, goods or services, without such person’s prior consent.” Cal.

Civ. Code § 3344(a). The statute expressly provides that liability based on a photograph requires that the

plaintiff be “readily identifiable” from that photograph. Davis v. Electronic Arts Inc., No. 10-CV-03328-RS,

2017 WL 3335758, at *2 (N.D. Cal. Aug. 4, 2017) (quoting Cal. Civ. Code § 3344(a)).

1. Bulova’s Use Was Incidental, And Hence Not Actionable

The minimal use of plaintiff’s name (which only appeared in the First Online Watch Description),

title, and tiny, obscured, photograph was merely incidental to the Booklets and First and Second Online

Watch Descriptions. The use of two seconds of plaintiff’s voice in a 79-second video is further incidental to

the Video as a whole.

The U.S. Supreme Court has ruled that “mere incidental mention of the plaintiff’s name . . . is not an

invasion of his privacy.” Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 575 n.11 (1977); see also

Restatement (Second) of Torts § 652C, comment d (“[A] plaintiff’s name is not appropriated by mere

mention of it.”). Critically, “[u]se for purposes of trade would not ordinarily include the use of a person’s

identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that

is incidental to such uses.” Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017) (citing 1 Nimmer on


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Copyright § 1.01[B][3][b][iv] (2017)). Under the incidental use doctrine, “[t]he value of the plaintiff’s name

is not appropriated . . . when it is published for purposes other than taking advantage of his reputation,

prestige, or other value associated with him, for purposes of publicity.” Wong v. Golden State Auction

Gallery, Inc., No. 14-CV-00999-EMC, 2016 WL 829073, at *3 (N.D. Cal. Mar. 3, 2016) (quoting Perkins v.

LinkedIn Corp., 53 F. Supp. 3d 1222, 1254 (N.D. Cal. 2014)). In short: “No one has the right to object

merely because his name or his appearance is brought before the public, since neither is in any way a private

matter and both are open to public observation. It is only when the publicity is given for the purpose of

appropriating to the defendant’s benefit the commercial or other values associated with the name or the

likeness that the right of privacy is invaded.” Wong, 2016 WL 829073 at *3–4 (quoting Perkins, 53 F. Supp.

3d at 1254); see also Aligo v. Time-Life Books, Inc., No. C 94-20707 JW, 1994 WL 715605 (N.D. Cal. Dec.

19, 1994) (use of the plaintiff’s image for four seconds in a 29-minute commercial was incidental use).

Each of the factors courts consider in determining whether the doctrine of incidental use applies

requires a finding in Bulova’s favor. First, courts consider whether the use has a unique quality or value that

would result in commercial profit to the defendant. Wong, 2016 WL 829073, at *4. The “unique quality or

value” is the historical fact that the Original Lunar Watch was worn on the moon: it does not matter who

wore it.

Second, courts consider whether the use contributes something of significance. Wong, 2016 WL

829073, at *4. Again, the incidental uses at issue are not what are of “significance” to the materials or the

watch. Plaintiff argues that the “use of Plaintiff’s name, image and likeness contributes something of

significance in that they are essential to the marketing of an alleged replica watch that is indistinguishable

from any other Bulova timepiece without its link to plaintiff.” [Dkt. 39] Opp. at 12:5-8 (emphasis added).

Plaintiff’s argument strains credibility. Given the limited scope of the use of his identity, plaintiff’s identity

could not have been “essential” to the marketing of the watch. This is further evidenced by the fact that

Bulova easily modified the materials at issue to remove most of the passive references to plaintiff, with no

tangible impact on the materials. Napolitano Decl. ¶ 7, Exs. 1, 2.

The third factor courts consider is the relationship between the reference to the plaintiff and the

purpose and subject of the work. Wong, 2016 WL 829073, at *4. The purpose and subject of the materials at

issue is to describe the Commemorative Lunar Watch, its historical inspiration, and its technical


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specifications. The references to plaintiff are fleeting. Plaintiff argues that “the entire marketing and

promotion of the watch centers around the fact that Plaintiff wore a Bulova watch on the moon.” [Dkt. 39]

Opp. at 12:9-11. It is amply evident from the materials that the “entirety” of the marketing and promotion of

the watch does not “center” on the fact that plaintiff wore the watch, but rather, focuses on the technical

specifications of the Commemorative Lunar Watch and the fact that the Original Lunar Watch functioned in

outer space and on the moon—not on the fact that “plaintiff wore the watch.” See Napolitano Decl. ¶¶ 4, 6-

12, Exs. 1-5. Indeed, the materials could have depicted any astronaut and would have had the exact same

impact.

Fourth, courts consider the duration, prominence or repetition of the likeness relative to the rest of

the publication. Wong, 2016 WL 829073, at *4. As described above, the discrete uses at issue were sparse

relative to the remaining elements of the materials, including their creative, artistic elements and descriptions

of technical specifications. See Napolitano Decl., Exs. 1-5. Plaintiff has once again hyperbolically argued

that the material “forever link[s] the Bulova Moon Watch to Plaintiff,” ([Dkt. 39] Opp. at 12:12-13), but

plaintiff has also conceded that Bulova has “the right to replicate, market and sell their own moon watch”

([Dkt. 39] Opp. at 12:14-15). And whether plaintiff likes it or not, he was gifted a Bulova watch that he

chose to take to the moon. He is therefore “forever linked” with any recreation of that watch by virtue of his

choice to wear the Original Lunar Watch, not as a result of marketing materials conveying that fact.

This case is analogous to Aligo v. Time-Life Books, Inc., which involved the use of the plaintiff’s

likeness for a total of four seconds in a 29-minute commercial. 1994 WL 715605, at *2. In Aligo,

defendant’s commercial displayed the cover of a Rolling Stone Magazine on which plaintiff’s image

appeared in 1969. Id. at *1–2. The court held that the use was incidental because of the brief amount of time

that the plaintiff’s photograph appeared in the commercial. Id. at *4. Similarly, here, Bulova’s use of a two-

second clip of plaintiff’s voice in the Video and photographs that do not reveal his face is incidental in the

context of the materials as a whole. Indeed, Bulova’s use is even more incidental than the use in Aligo,

because plaintiff here is not readily identifiable from the Video. To the contrary, he is only potentially

“identifiable” after extensive research.

The incidental use of plaintiff’s identity alone disposes of each of plaintiff’s right of publicity claims,

and summary judgment should be granted in Bulova’s favor.


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2. The Booklets And Online Watch Descriptions Are Protected By The First Amendment Because They Are Transformative Works In The Public Interest

The California Supreme Court has subjected the “right of publicity” under California law to a

narrowing interpretation which accords with the protections afforded by the First Amendment and the

California Constitution. The Court has acknowledged that “the right of publicity has not been held to

outweigh the value of free expression. Any other conclusion would allow reports and commentaries on the . .

. conduct of public and prominent persons to be subject to censorship under the guise of preventing the

dissipation of the publicity value of a person’s identity.” Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d

860, 872 (1979). For this reason, even if each of the elements of a publicity claim is established, the “First

Amendment requires that the right to be protected from unauthorized publicity ‘be balanced against the

public interest in the dissemination of news and information consistent with the democratic processes under

the constitutional guaranties of freedom of speech and of the press.’” Gionfriddo v. Major League Baseball,

94 Cal. App. 4th 400, 409 (2001) (quoting Gill v. Hearst Publishing Co., 40 Cal. 2d 224, 228 (1953)).

Further, a matter in the public interest is not restricted to current events but may extend to the reproduction of

past events. Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 542 (1993); Gionfriddo, 94 Cal. App. 4th at

411 (“In the uses challenged, Baseball is simply making historical facts available to the public through game

programs, Web sites and video clips. The recitation and discussion of factual data concerning the athletic

performance of these plaintiffs commands a substantial public interest, and, therefore, is a form of expression

due substantial constitutional protection.”).

“Once the celebrity thrusts himself or herself forward into the limelight, the First Amendment

dictates that the right to . . . make other expressive uses of the celebrity image must be given broad scope.

The necessary implication of this observation is that the right of publicity is essentially an economic right.

What the right of publicity holder possesses is not a right of censorship . . . . ” Comedy III Prods., Inc. v.

Gary Saderup, Inc., 25 Cal. 4th 387, 403 (2001). Thus, the incorporation of a prominent person’s name or

likeness in a commercial product has been found to constitute protected expression. See Guglielmi, 25 Cal.

3d at 875 n.21. “An expressive activity does not lose its constitutional protection because it is undertaken for

profit.” Comedy III Prods., 25 Cal. 4th at 396 (alterations and quotation marks omitted). As the Ninth Circuit

has noted, “the core notion of commercial speech is that it does no more than propose a commercial

transaction,” and simply advertises something for business purposes. Hilton v. Hallmark Cards, 599 F.3d


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894, 905 n.7 (9th Cir. 2010) (quotations omitted).

In addition to barring publicity claims for speech that is in the public interest, the First Amendment

also protects speech that is sufficiently “transformative.” Comedy III Prods., 25 Cal. 4th at 406 (creating a

transformative use test as one means of determining whether the First Amendment protects the use of a

celebrity’s image in an expressive work). Where a work “contain[s] significant transformative elements” and

“the value of the work does not derive primarily from the celebrity’s fame,” it will be protected by the First

Amendment. Id. at 407.

Both the public interest and transformative use tests are satisfied in this case.

a. The Booklets And Online Watch Descriptions Describe An Issue Of Public Interest: The Apollo 15 Mission, Moon Landing, And The Historical Feat Of Bulova’s Original Lunar Watch

The Booklets, Online Watch Descriptions, and Video indisputably convey matters of public interest.

While the focus of the materials is on the watches at issue—not plaintiff himself—courts have recognized

that there is a substantial public interest in biographical information about historical figures, including their

names and images and descriptions of their achievements. For example, in Dora, the court found that a film

about surfing in Southern California in the 1950s, which included images and audio of surfing pioneer

Mickey Dora, concerned a matter of public interest. 15 Cal. App. 4th at 542-543. In Gionfriddo, the court

reiterated that the public interest is not limited to current events; the public is also entitled to be informed and

entertained about our history, including baseball. 94 Cal. App. 4th at 416; see also Hilton, 599 F.3d at 912

(public interest attaches to people, like Paris Hilton, who by their accomplishments create a bona fide

attention to their activities). If surfing, baseball, and Paris Hilton are matters of public interest, there can be

no question that space exploration is as well.

While plaintiff has suggested that the First Amendment should not protect works like Bulova’s

because they were created in connection with a product that Bulova sold, that is not the law. To the contrary,

the Ninth Circuit and California courts have recognized that constitutional free-speech guarantees extend to

the use of public figures’ names and likeness in commercial works such as motion pictures (Guglielmi, 25

Cal. 3d at 867-868), comic books (Winter v. DC Comics, 30 Cal. 4th 881, 888 (2003)), video games (Kirby

v. Sega of America, Inc., 144 Cal. App. 4th 47, 58 (2006)), greeting cards (Hilton, 599 F.3d at 912), baseball


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game programs (Gionfriddo, 94 Cal. App. 4th at 411) and posters (Montana, 34 Cal. App. 4th at 795-798).8

And, in any event, the mere fact that a product is sold for a profit does not render connected materials

commercial speech. Aldrin v. Topps Co., Inc., No. CV 10-09939 DDP (FMOX), 2011 WL 4500013, at *2

(C.D. Cal. Sept. 27, 2011) (citing Hilton, 599 F.3d at 905); see also Harte-Hanks Communications, Inc. v.

Connaughton, 491 U.S. 657, 667 (1989) (“[i]f a profit motive could somehow strip communications of the

otherwise available constitutional protection, our cases from New York Times to Hustler Magazine would be

little more than empty vessels”).

The case of Aldrin v. Topps Co, also involving space exploration, is on point. In Aldrin, defendant

Topps released a trading card set including hundreds of images of well-known American politicians, actors,

athletes, scientists, organizations, artifacts, and events. 2011 WL 4500013, at *1. The cards also displayed,

on the reverse face of the cards, historical information related to the image displayed on the front of the

cards. The set of cards featured several themes, including “Heroes of Spaceflight,” which were packaged in

cardboard boxes bearing three images, including an image of “arguably the world’s most famous space-

related photo,” the “Visor Shot,” captioned “Moon Landing Apollo 11.” Id.

As in this case, the “Visor Shot” is an image of an astronaut in a white space suit. The astronaut’s

helmet visor obscures the astronaut’s face, and reflects an image of another astronaut alongside a lunar

landing module. Unlike this case, however, where no identifying marks appear in the photograph, in the

“Visor Shot” in Aldrin, the spacesuit bears the name “E. Aldrin.” Id.

Based on the use of his name and photo, astronaut Buzz Aldrin alleged improper uses of his name,

image, and likeness with respect to the “Visor Shot” image on the cardboard box, the Gemini XII card (lists

the Gemini XII mission dates, crew, and launch site), and the Buzz Aldrin “cut signature” card. Id. In

dismissing his case, the court held that the speech was protected by the First Amendment because where a

public figure’s name is used in connection with a product that bears a relationship to the reason why that

8 Plaintiff has contended that the uses at issue can be distinguished from the case law recognizing protection for public interest and transformative works because the uses at issue are “merely . . . advertisement[s].” [Dkt 39] Opp. at 13:1-2. While Bulova disputes that such a distinction is dispositive—or even relevant—plaintiff is incorrect with respect to Bulova’s Booklets because the Booklets are not available to or displayed to the public. Napolitano Decl. ¶ 6. Rather, they are only provided to a single consumer when that consumer purchases the watch. Just as the consumer does not receive the watch or the box for the watch without paying, so too with the Booklets. Id. The Booklets therefore are the product, not advertisement for the product. And, as discussed below, the Booklets are also a literary, creative work, included for those who already purchased the watch to provide historical context.


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person is famous, the speech is protected. Id. at *2. That analysis applies with equal force in this case.

As in Aldrin, Bulova simply used plaintiff’s name, title, unidentified (and unrecognizable) voice, and

obscured photograph to convey a historically significant fact. See Aldrin, 2011 WL 4500013, at *3 (“the

cards use Aldrin’s name in the course of conveying information about his historically significant

achievements”). Moreover, Bulova’s use was related to the reason plaintiff is famous—for being one of 12

people to have walked on the moon—which is a historical fact, not a personal attribute. This is not, by

contrast, a situation where a defendant used a celebrity’s name to endorse a product wholly unrelated to the

reason that person is famous. See, e.g., Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996)

(right of publicity violation where basketball player’s name was used in a car commercial); Yeager v.

Cingular Wireless LLC, 673 F. Supp. 2d 1089, 1098 (E.D. Cal. 2009) (pilot’s name used in mobile phone

company’s publication about preparedness for disasters).

Plaintiff cannot dispute that the materials, which relay details of one of only six total moon landings,

and the only known instance in which an astronaut used a personal timepiece on the moon, include matters

of public interest. Space exploration, and in particular, the moon landings, have captured the imagination of

the world for the better half of the past century. That there is significant public interest in not only space

exploration, but specifically, in objects that have been taken to the moon, is most easily demonstrated by

plaintiff’s own sale for over $3,621,108 million of objects he took into space. See Boyajian Decl., Exs. 9, 10,

15 (Second Amended Response to Interrogatory No. 9). Indeed, plaintiff himself alleges that he is

“universally recognized as one of the greatest pioneers of space exploration” and “enjoys a major national

and international reputation and following.” FAC ¶ 6.

The materials are therefore protected under the First Amendment because they constitute speech that

is in the public interest.

b. The Booklets, Online Watch Descriptions, And Video Contain Significant Transformative Elements

In addition to containing speech that is in the public interest, the materials at issue are further

protected by the First Amendment because they contain significant transformative elements and their value

does not derive from plaintiff, but rather from their various other, creative and descriptive elements. Comedy

III Prods., 25 Cal. 4th at 407.


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The transformative use doctrine, which applies equally to both statutory and common law

misappropriation claims, considers “whether the celebrity likeness is one of the raw materials from which an

original work is synthesized,” in which case the work is protected, or “whether the depiction or imitation of

the celebrity is the very sum and substance of the work in question.” Id. at 406. In other words, a court must

evaluate whether the work as a whole (not its individual parts) “containing a celebrity’s likeness is so

transformed that it has become primarily the defendant’s own expression rather than the celebrity’s

likeness.” Id. The court in Comedy III Prods. expressly noted that the proper focus for a court applying the

transformative use test is not whether the plaintiff’s name or likeness has been transformed physically in the

defendant’s work. Indeed, if that were the test, then the use of a name or likeness never would be protected.

Instead, a court must determine whether the defendant’s work “adds significant creative elements. . . [that]

transform[ed] [it] into something more than a mere celebrity likenesses.” Id. It therefore does not matter

whether or not, for example, Bulova altered the photograph of plaintiff in the spacesuit.

As the Ninth Circuit explained, “[t]he potential reach of the transformative use defense is broad. The

form of the expression to which it applies ‘[is] not confined to parody and can take many forms[.]’” Hilton,

599 F.3d at 909 (quoting Comedy III Prods., 25 Cal. 4th at 406). To underscore that point, the California

Supreme Court specifically has stated that the transformative use test protects works that use a real-life

person’s actual name or literal image. Comedy III Prods., 25 Cal. 4th at 406 (citations omitted).

The Booklets, Online Watch Descriptions, and Video are much more than a “mere celebrity

likeness[]” (Comedy III Prods., 25 Cal. 4th at 406) of plaintiff; the largely unidentifiable fragments of

plaintiff identity are just one of the “raw materials” (id. at 407)—and minor ones at that—from which

Bulova created its works. Indeed, the focus of the materials is the historical feat of Bulova’s Original Lunar

Watch and specifications of the Lunar Watches, not plaintiff. Because plaintiff’s name and likeness are not

even remotely the “sum and substance” of the Booklets, Online Watch Descriptions, and Video, they are

protected under the transformative use doctrine. Comedy III Prods., 25 Cal. 4th at 406; see also ETW Corp.

v. Jireh Pub., Inc., 332 F.3d 915, 938 (6th Cir. 2003) (applying Ninth Circuit First Amendment analysis in

holding that a painting featuring a realistic likeness of Tiger Woods playing golf at The Masters, with several

former champions rendered in the background, “contain[ed] significant transformative elements which make

it especially worthy of First Amendment protection,” and that even though the foreground of the painting


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was dominated by Woods’ realistic image, the work “consist[ed] of much more than a mere literal likeness

of Woods,” which elements were “combined to describe, in artistic form, a historic event in sports

history[.]”).

Under either and both First Amendment tests—public interest and transformative use—the materials

at issue are protected speech, and summary judgment should be entered on plaintiff’s right of publicity

claims.9

3. Plaintiff’s Section 3344 Claim Is Also Not Actionable Because The Use Concerns “Public Affairs”

Similar to the public interest doctrine, no prior consent is required under Civil Code Section 3344 for

“use of a name, . . . photograph, or likeness in connection with any . . . public affairs . . . .” Cal. Civ. Code §

3344(d); Montana, 34 Cal. App. 4th at 793-94. The term “public affairs” covers a broader spectrum of issues

than merely those that are newsworthy or a news account. “We presume that the Legislature intended that

the category of public affairs would include things that would not necessarily be considered news. We also

presume that the term ‘public affairs’ was intended to mean something less important than news.” Baugh v.

CBS, Inc., 828 F. Supp. 745, 754 (N.D. Cal. 1993) (quoting Dora, 15 Cal. App. 4th 536). When public

affairs publications are involved, the balance must be drawn strongly in favor of dissemination.” Baugh, 828

F. Supp. at 754. Indeed, Section 3344(d)’s public-affairs exemption is even broader than the constitutional

public-interest defense, “providing extra breathing space for the use of a person’s name in connection with

matters of public interest.” New Kids on the Block v. News America Pub., Inc., 971 F.2d 302, 310 (9th Cir.

1992).

Here, that an astronaut took a personal watch to the moon that was used as a backup because the

official NASA time pieces malfunctioned is a matter of historical interest that easily falls within the public

affairs exemption of Section 3344(d). See Dora, 15 Cal. App. 4th 536 (pervasive use of pioneer surfer

Mickey Dora’s identity “directly contributed to the story about surfing which came within the protected

9 Because the materials at issue are protected under the First Amendment, plaintiff must demonstrate a substantial competing interest to prevail. Gionfriddo, 94 Cal. App. 4th at 414. Plaintiff cannot do so here. Indeed, any competing interest he may have had was extinguished when he privately sold the Original Lunar Watch for $1.625 million. See Boyajian Decl. Ex. 9. Where the “challenged uses involve statements of historical fact, descriptions of these facts or [] depictions of them . . . the public interest favoring the free dissemination of information regarding [] history far outweighs any proprietary interests at stake.” Gionfriddo, 94 Cal. App. 4th at 414.


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public interest”). Because Bulova’s alleged use concerns public affairs, summary judgment should be

entered on plaintiff’s section 3344 claim.

4. Plaintiff’s Section 3344 Claim Is Not Actionable Because Plaintiff Is Not “Readily Identifiable” From The Photograph

In addition to being protected under the First Amendment, constituting an incidental use, and falling

under the “public affairs” exception, the use at issue is also not actionable under Section 3344 because

plaintiff is not “readily identifiable” from the materials.

A person is “deemed to be readily identifiable from a photograph when one who views the

photograph with the naked eye can reasonably determine that the person depicted in the photograph is the

same person who is complaining of its unauthorized use.” Cal. Civ. Code § 3344(b). The Ninth Circuit has

held that the same “readily identifiable” standard applies to claims based on alleged misappropriation of

“likeness.” Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998) (“Because a likeness and a

photograph are so similar—a photograph is a visual image that is obtained by using a camera while a

likeness is a visual image of a person other than a photograph—we find application of this standard

appropriate to likenesses as well as photographs. Therefore, we hold that in order to constitute [the

plaintiff’s] likeness, the [person] depicted in the advertisement must be readily identifiable as [the

plaintiff].”).

As this Court has recently ruled, where a plaintiff is only “identifiable through additional contextual

information,” he cannot state a claim under Section 3344. Davis, 2017 WL 3335758, at *3. In Davis,

plaintiffs claimed that the avatars in defendant’s video games could be “associated with specific retired NFL

players because the games include information regarding each avatar’s ‘(1) team; (2) position; (3) physical

characteristics (i.e. height, weight, skin tone, appearance etc.); (4) biographical characteristics (i.e. age and

experience) and because during game play, each avatar allegedly ‘impersonates or mimics’ the way each

associated plaintiff played when they were active on the historical teams represented in the games.” Id. at *2.

Of these characteristics, skin tone and indications of height and weight were “plainly . . . observable in the

avatars.” Id. Despite the existence of these various contextual and physical characteristics, the Court found

that “plaintiffs’ claims under section 3344 are not tenable” because they have not shown that any of the

avatars in the games could be “‘readily identified’ as corresponding to any specific plaintiff based on the


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appearance of the avatar alone. Rather, plaintiffs insist that the avatars are identifiable through additional

contextual information.” Id. at *2 (emphasis added).

As in Davis, plaintiff here argues that references such as “mission commander of the Apollo 15,”

images of plaintiff in a spacesuit, a red stripe on the spacesuit, and a photo of the Lunar Rover are contextual

clues10 about who the depicted astronaut may be. Such vague context—which falls far short of the context

provided in Davis, which included skin tone, height, and weight—is insufficient to prevail on a right of

publicity claim.11 On this ground, summary judgment should be entered on plaintiff’s section 3344 claim.

For any and all these reasons, Bulova is entitled to summary judgment on each of plaintiff’s right of

publicity claims.

C. Bulova Is Entitled To Summary Judgment On Plaintiff’s Purported Lanham Act Claims

Bulova is entitled to summary judgment on both of plaintiff’s Lanham Act claims12 because: (1) the

use at issue was a nominative fair use; (2) Bulova did not make any misrepresentations or use that is likely to

confuse consumers, as required to prove a violation of Section 43(a)(1); and (3) there is no trademark “use”

of plaintiff’s name or other elements of his identity by either plaintiff or Bulova.

1. Bulova’s Use Was A Nominative Fair Use

Plaintiff cannot prevail on any trademark-based claim because the indisputable facts demonstrate that

Bulova’s use was a nominative fair use.

Courts have long acknowledged that a mark may be found to involve “a non-trademark use” where it

would be difficult to avoid the mark in describing particular goods or services or their geographic origin. For

10 The only explicit reference to plaintiff was in the First Online Watch Description, displayed by Sterling, which was revised to remove that reference (and which in any event was an incidental, nonactionable use, as described above). 11 While the Court in Davis stated, in dicta, that plaintiffs may nonetheless be able to succeed on a claim under the common law right of publicity, plaintiff here would not. In addition to the factors described above, the common law claim would fail because the identifying information in Davis, as in White v. Samsung Electronics. America., Inc., 971 F.2d 1395 (9th Cir. 1992), was far more extensive than in this case, including the plaintiffs’ team, position, physical characteristics (i.e. height, weight, skin tone, appearance etc.), biographical characteristics (i.e. age and experience), and because during game play, defendants sought to impersonate or mimic the way each associated plaintiff played when they were active on the historical teams represented in the games. The defendants in Davis, therefore, exploited specific characteristics of plaintiffs in order to make their game more successful, e.g., consumers wanting to select a particular player because of their specific characteristics and “style.” No such effort was made here. Plaintiff cannot credibly argue that any consumer would have felt differently about the watch if it turned out that the astronaut behind the visor was another one of the 11 men to have walked on the moon. 12 While not clear from the FAC, plaintiff has taken the position that his fifth claim arises under the Lanham Act. [Dkt. 39] Opp. at 20.


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example, the use of the name “Volkswagen” in the sign for a Volkswagen repair shop was held to be a fair

use because it would have been “difficult, if not impossible, . . . to avoid altogether the use of the word

‘Volkswagen’ or its abbreviation ‘VW . . . [to] signify appellants’ cars.” Volkswagenwerk Aktiengesellschaft

v. Church, 411 F.2d 350, 352 (9th Cir. 1969). The Ninth Circuit subsequently fleshed out the elements of the

nominative fair use defense in New Kids on the Block v. News America Publishing, Inc., holding that to

establish a nominative fair use defense, a defendant must prove the following three elements: first, the

plaintiff’s product or service in question must be one not readily identifiable without use of the trademark;

second, only so much of the mark or marks may be used as is reasonably necessary to identify the plaintiff’s

product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest

sponsorship or endorsement by the trademark holder. New Kids on the Block, 971 F.2d at 308 (applying test

to both federal, state, and common law claims for trademark infringement, false advertising, and unfair

competition, because they “all hinge on one key factual allegation: that the newspapers’ use of the New Kids

name in conducting the unauthorized polls somehow implied that the New Kids were sponsoring the

polls.”); see also Cairns v. Franklin Mint Co., 292 F.3d 1139, 1150 (9th Cir. 2002) (citing New Kids on the

Block, 971 F.2d at 308).13

All three elements of the nominative fair use test are satisfied in this case. First, identifying

plaintiff—by name, title, and through a photograph of an astronaut in a space suit on the moon—as the

individual who wore the watch provides the necessary context for the watch to be identifiable as the watch

that was taken to the moon and used as a backup to the official NASA-issued time pieces. See Cairns, 292

F.3d at 1153 (“[O]ne might refer to ‘the English princess who died in a car crash in 1997,’ but it is far

simpler (and more likely to be understood) to refer to ‘Princess Diana.’ We therefore hold that Princess

Diana’s person is not readily identifiable without use of her name.”). 14

Second, Bulova used no more of the fragments of plaintiff’s identity than necessary to convey the

history of the watch—his name was only used once in the First Online Watch Description, and not at all in

13 The nominative fair use analysis replaces the Sleekcraft likelihood of confusion analysis. Cairns, 292 F.3d at 1150-51. 14 While it was necessary for Bulova to make vague references to plaintiff in describing the Lunar Watches, that necessity does not alter the incidental nature of the uses. In other words, it was necessary only for Bulova to make the incidental uses it made in order to provide context. Bulova readily acknowledges that more extensive uses may well have gone beyond the scope of what is incidental and/or necessary to provide context, but no such uses in fact were made by Bulova.


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either versions of the Booklets or the Second or Third Online Watch Descriptions. See Cairns, 292 F.3d at

1154 (a caption reading “Diana” and photograph showing Princess Diana wearing her royal tiara and bolero

jacket were “reasonably necessary” to identify Princess Diana.”).

Third, Bulova has done “nothing that would, in conjunction with the mark, suggest sponsorship or

endorsement by the trademark holder.” New Kids on the Block, 971 F.2d at 308. None of the materials at

issue claim or even suggest that the Commemorative Lunar Watch was sponsored or endorsed by plaintiff.

The absence of such statements or indicia in connection with the Commemorative Lunar Watch strongly

indicates that it was not sponsored or endorsed by the plaintiff. See Cairns, 292 F.3d at 1155 (“The absence

of similar statements in Franklin Mint’s advertisements for its Diana-related products suggests that they are

not sponsored or endorsed by the Fund.”); see also Playboy Enterprises, Inc. v. Welles, 279 F.3d 796, 803

(9th Cir. 2002) (nominative fair use where “[a] large portion of [the former Playmate’s] website discusses

her association with Playboy over the years . . . [and] the trademarked terms accurately describe the contents

of [the former Playmate’s] website, in addition to describing [the former Playmate].”). Because Bulova’s

uses constitute nominative fair use, Bulova is entitled to summary judgment on the Lanham Act claims for

this reason alone.

2. It Is Indisputable That Bulova Did Not Make Any Use That Is Likely To Cause Consumer Confusion Or Make Any Misrepresentations

Plaintiff can only prevail on his trademark claims by proving that Bulova used a word, term, name,

symbol, or device, 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 . . . .

15 U.S.C. § 1125(a)(1). Plaintiff cannot prevail on either variety of claim.

a. The Likelihood Of Confusion Is Non-Existent

Each of the Ninth Circuit’s likelihood of confusion Sleekcraft factors, along with the undisputed

facts, demonstrate that there is no likelihood of confusion in this case.


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The first Sleekcraft factor, similarity of the conflicting designations, weighs in Bulova’s favor

because, as detailed below, plaintiff does not even have a trademark use of his name, image, likeness or title

that could be compared to Bulova’s use; there simply are no “conflicting designations.” Boyajian Decl. Ex.

13. Second, the parties’ “products or services” are in no way related: plaintiff is a retired astronaut who

auctions off space memorabilia, while Bulova is a company that creates and sells timepieces and jewelry.

Third, as discussed below, there is no evidence that plaintiff has made any use of his name or likeness as a

mark—indeed he denies having every licensed his name or likeness, id. Ex. 15 (Second Amended Responses

to Interrogatories Nos. 1, 3; Amended Response to Interrogatory No. 2)—no less evidence that plaintiff’s

alleged mark is “strong.” Fourth, there is no overlap in the “marketing channels” used by plaintiff and

Bulova because plaintiff is not in the business of selling watches, and by the time the Commemorative Lunar

Watch was being sold, plaintiff had already auctioned the Original Lunar Watch. Fifth, while plaintiff has

characterized the Commemorative Lunar Watch as “cheap,” ([Dkt. 39] Opp. at 5:17) most American

consumers would exercise care in purchasing a $500- $600 watch. American consumers have further

become sensitized and aware of what advertisement surrounding an endorsed watch looks like, almost

always including a head shot of the celebrity in the advertisement and/or the celebrity’s signature. Request

for Judicial Notice in Support of Defendants’ Motion to Dismiss, Exs. 12-13 [Dkt. 33-6; 34-1]. Sixth,

Bulova’s intent in using the limited and fragmented aspects of plaintiff’s identity was not in any way meant

to exploit his identity, but rather, to provide historical context for the watch. Seventh, while Bulova

specifically requested information and documents evidencing actual confusion, plaintiff did not produce any

such documents. Boyajian Decl. Ex. 13 (Interrogatory No. 7). Instead, plaintiff’s documents, like Bulova’s

materials, include statements from consumers who merely reference plaintiff and/or the Apollo 15 mission in

connection with the historical fact that the Original Lunar Watch was worn on the moon. Finally (and as

plaintiff acknowledges, [Dkt. 39] Opp. at 22), it is highly unlikely that plaintiff will expand from selling

space memorabilia to creating and selling new watches. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49

(9th Cir. 1979), abrogated on other grounds by Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th

Cir. 2003). The likelihood of confusion is even further reduced by the fact that consumers do not see the

Booklets until after they have already purchased the watch. Napolitano Decl. ¶ 6. The evidence therefore

does not support any likelihood—or even possibility—of confusion between Bulova’s use and plaintiff’s


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uses. No reasonable consumer would believe that the passive, factual identification of plaintiff as the

individual who wore the Original Lunar Watch means that the former astronaut who did so is now

manufacturing watches with Bulova or even endorsing the watches, given the complete absence of other

endorsement indicia.

b. Plaintiff Cannot Prove That Bulova Made Any False Statement

Plaintiff’s Lanham Act claim for false advertising pursuant to 15 U.S.C. § 1125(a)(1)(B) fares no

better. Section 43(a)(1)(B) requires plaintiff to show: (1) a false statement of fact by the defendant in a

commercial advertisement about its own or another’s product; (2) the statement actually deceived or has the

tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to

influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce;

and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct

diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products.

Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012) (citing 15 U.S.C. § 1125(a)(1)(B) and

Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997)).

As a threshold matter, there is no false or misleading statement in any of the materials at issue;15

rather, the information disclosed are historical facts that plaintiff himself eagerly shared in marketing the

Original Lunar Watch. Boyajian Decl. Ex. 8. Nor are the limited references to plaintiff misleading or likely

to deceive in anyway (no less a material way), for the same reasons that there is no likelihood of confusion.

Plaintiff has further failed to provide any evidence of the manner in which he has allegedly been injured or is

likely to be injured. To the contrary, the evidence shows that publicity about Bulova’s Commemorative

Lunar Watch has often included references to his auctioning of the Original Lunar Watch, and may indeed

lead consumers to investigate other space memorabilia that plaintiff may be selling.

Plaintiff will be unable to prevail on any variety of Lanham Act claim under Section 43(a).

3. Neither Plaintiff Nor Bulova Has Made Any Trademark “Use” Of Plaintiff’s

15 To the extent plaintiff intends to argue that Bulova engaged in false advertising by describing the Commemorative Lunar Watch is a “replica,” even though it has been mechanically improved, this argument also fails. Bulova specified in its materials that the Commemorative Lunar watch is “updated with our exclusive high performance quartz movement . . . .” Napolitano Decl. Ex. 5 (Third Online Watch Description) (emphasis added). Obviously, if something is described as being “updated,” it is not claiming to be an exact replica.


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Identity

Bulova is further entitled to summary judgment on plaintiff’s trademark claims because plaintiff

does not have any trademark rights (common law or federal16) in his name separate and apart from his name.

See Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090, 1097–98 (N.D. Cal. 2011) (because the “Lanham Act is

intended ‘to regulate commerce’ and ‘to protect persons engaged in such commerce against unfair

competition,” “plaintiffs pursuing a false association or false endorsement claim must be able to allege some

‘commercial interest’ in their names and likenesses that was injured by Defendant’s actions.” (citing Waits v.

Frito–Lay, Inc., 978 F.2d 1093, 1110 (9th Cir.1992) (holding that a plaintiff in a Lanham Act false

endorsement claim must have “an economic interest akin to that of a trademark holder in controlling the

commercial exploitation of his or her identity”), abrogated on other grounds by Lexmark Int’l, Inc. v. Static

Control Components, Inc., 134 S. Ct. 1377 (2014)). In other words, because plaintiff does not use his name,

image, or likeness in the trademark sense of identifying a source of goods or services, he cannot state a false

designation of origin claim.

Nor has Bulova used plaintiff’s name, likeness, or title in the trademark sense of identifying the

source of goods or services. Rather, Bulova simply and accurately described the history of the watch. See,

e.g., Playboy Enters., 279 F.3d at 803 (former Playmate of the Year could use Playboy’s trademarked title

“Playmate of the Year” in describing herself and promoting her services as a spokeswoman) (separate ruling

on dilution issue superseded by Trademark Dilution Revision Act). For any and all these reasons, Bulova is

entitled to summary judgment on any Lanham Act claim plaintiff purports to state.

D. Bulova Is Entitled To Summary Judgment On The Remainder Of Plaintiff’s “Not Necessary” Claims For Alleged Emotional Distress And Negligence

As the Court noted (at the very least), plaintiff’s claims for intentional and negligent emotional

distress and negligence are “not necessary” and make these “proceedings more complicated, expensive,

[and] time consuming.” Dkt. 65 at 12:24-13:7. However, because plaintiff elected to ignore the Court’s

advice and proceed on these claims, Bulova briefly addresses the reasons why it is entitled to summary

judgment on these claims.

16 Plaintiff’s lack of any registered trademark rights is easily verified by a search on the USPTO’s website. Boyajian Decl. ¶ 13. Nor has plaintiff alleged or provided evidence of any such trademark rights (FAC ¶¶ 40-43) or disputed defendants’ argument that he does not have any ([Dkt. 39] Opp. at 20-22).


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1. Bulova Is Entitled To Summary Judgment On Both Of Plaintiff’s Emotional Distress Claims As There Is No Evidence Of Outrageous Conduct Or Any “Special Relationship” Between Bulova And Plaintiff

Plaintiff’s gross overreach in this suit is well-illustrated by his claim that Bulova’s statements that he

—or vaguely Apollo 15’s “mission commander”—wore the Bulova watch on the moon, or use of two

seconds of his unidentifiable voice, constitutes “outrageous conduct” that caused “severe” or “serious”

emotional distress. Such a claim is unsupportable, and unsupported.

A claim for intentional infliction of emotional distress requires that a plaintiff suffer severe emotional

injury caused by the defendant’s outrageous conduct, absent any privilege, with the intent to cause, or with

reckless disregard of the probability of causing, emotional distress. See Huntingdon Life Sciences, Inc. v.

Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228 (2005).

A claim for negligent infliction of emotional distress requires that there be a special relationship

between plaintiff and Bulova that would impose a duty on Bulova to not cause him emotional distress.

Huntingdon Life Sciences, Inc., 129 Cal. App. 4th at 1264. This is because the “negligent causing of

emotional distress is not an independent tort but the tort of negligence, involving the usual duty and

causation issues.” Id. (quoting 6 Witkin, Summary of Cal. Law, Torts § 838 at 195 (9th ed. 1988)). “[T]here

is no duty to avoid negligently causing emotional distress to another, and . . . damages for emotional distress

are recoverable only if the defendant has breached some other duty to the plaintiff.” Id. (quoting Potter v.

Firestone Tire & Rubber Co., 863 P.2d 795, 807 (Cal. 1993)).

The “distress” alleged to have been caused under either a negligent or intentional theory of emotional

distress must be “serious” or “severe,” meaning substantial or enduring rather than trivial or transitory.

Huntingdon Life Scics., Inc., 129 Cal. App. 4th at 1259. “‘[L]iability ‘does not extend to mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities,’ but only to conduct so extreme and

outrageous ‘as to go beyond all possible bonds of decency. . . .’” Daniel v. Wayans, 8 Cal. App. 5th 367, 400

(2017), review filed (Mar. 20, 2017) (quoting Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 499 n.5

(1970)) (holding that boorish and/or juvenile comments about plaintiff’s physical appearance, and the use of

the “n” word did not constitute outrageous behavior); Newcombe, 157 F.3d at 696 (emotional distress claim

not viable where “there is no evidence that the defendants engaged in conduct that was intentionally


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outrageous. The evidence only indicated that the defendants intended to create an advertisement that evoked

feelings of nostalgia by including an old-fashioned, and generic, baseball scene. . . .”).

Plaintiff has not—and cannot—adduce any evidence that a passive reference to his name, title, two

seconds of his voice, and use of an obscured photo in connection with historical facts constitutes

“outrageous” behavior that caused him “serious” or “severe” distress—or any distress at all. Boyajian Decl.

Ex. 16 (Amended Response to Request for Production No. 20). Indeed, he himself extensively publicized the

fact that he wore the Bulova watch on the moon when he sold the original watch for $1.625 million. See id.

Exs. 7, 8. Moreover, because, by his own admission, plaintiff is a public figure, he cannot state a claim for

intentional infliction of emotional distress because he cannot prove malice by Bulova within the meaning of

New York Times Co. v. Sullivan, 376 U.S. 254 (1964); see also Hustler Magazine, Inc. v. Falwell, 485 U.S.

46, 56 (1988) (public figures may not recover for the tort of intentional infliction of emotional distress

without showing that the publication contains a false statement of fact which was made with “actual malice,”

i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true);

Napolitano Decl. ¶¶ 14-15.

Plaintiff has further failed to produce any evidence supporting a special relationship between Bulova

and plaintiff or a duty that Bulova owes to plaintiff. See Potter, 863 P.2d at 807-08 (holding that recovery for

negligent infliction of emotional distress “is available only if the emotional distress arises out of the

defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach

of duty”). Plaintiff has also not alleged any special relationship with Bulova or that Bulova owed him any

duty, but, rather, appears to rely on the alleged foreseeability of his emotional distress in support of his claim.

FAC ¶ 56. Foreseeability alone, however, is insufficient to impose tort liability. Erlich v. Menezes, 981 P.2d

978, 983 (Cal. 1999) (“[F]oreseeability alone is not sufficient to create an independent tort duty.”). For any

and all these reasons, Bulova is entitled to summary judgment on both of plaintiff’s emotional distress

claims.

2. Bulova Is Entitled To Summary Judgment On Plaintiff’s Negligence Claim Because It Is Duplicative Of His Other Claims

Bulova is entitled to summary judgment on plaintiff’s negligence claim because it is improperly

duplicative of plaintiff’s other claims. Newcombe, 157 F.3d at 695 (“The district court then concluded that a


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claim for negligent publication is essentially the same as either a claim for misappropriation or for

defamation, and that the constitutional and statutory principals regarding those standards cannot be

circumvented by artful pleading. We agree with the district court’s analysis and affirm [dismissal] on this

claim.”); see also Annamaria M v. Napa Valley Unified School Dist., No. C 03-0101 VRW, 2006 WL

1525733, at *16 (N.D. Cal. May 30, 2006) (striking general negligence claim “[b]ecause it is readily

apparent that [plaintiff]’s ninth claim (general negligence) adds nothing to the SAC”).

Bulova is entitled to summary judgment on each of these “not necessary” claims.

VI. CONCLUSION

The undisputed facts do not form the basis for any of the claims alleged by plaintiff. Bulova is

entitled to judgment as a matter of law.

DATED: October 30, 2017 GREENBERG TRAURIG, LLP

By: /s/ Ian C. BallonIan C. Ballon Nina D. Boyajian


Dated: October 30, 2017 CITIZEN WATCH COMPANY OF AMERICA, INC.

By: /s/ Seth PresserSeth Presser


ATTESTATION

I hereby attest that I have on file all holographic signatures corresponding to any signatures indicated

by a conformed signature (/S/) within this e-filed document.

Dated: October 30, 2017 /s/ Ian C. Ballon

Ian C. Ballon


Documents

GREENBERG TRAURIG, LLP IAN C. BALLON (SBN …Case No.: 5:17-cv-000436 NC Motion for Summary Judgment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG