Henley v. Duluth Motion to Dismiss

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4849-1252-1760.1 DEFENDANT DULUTH HOLDINGS, INC.S NOTICE OF MOTION AND MOTION TO DISMISS THE FOURTH

AND FIFTH CAUSES OF ACTION

LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW

LEWIS BRISBOIS BISGAARD & SMITH LLP DANIEL C. DECARLO, SB# 160307 E-Mail: [email protected] THOMAS S. KIDD, SB# 61717 E-Mail: [email protected] DANIEL R. LEWIS, SB# 260106 E-Mail: [email protected] 221 North Figueroa Street, Suite 1200 Los Angeles, California 90012 Telephone: 213.250.1800 Facsimile: 213.250.7900 Attorneys for Defendant DULUTH HOLDINGS INC., d/b/a DULUTH TRADING COMPANY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

DON HENLEY,

Plaintiff,

vs. DULUTH HOLDINGS, INC., d/b/a DULUTH TRADING COMPANY, a Wisconsin corporation,

Defendant.

CASE NO. LACV14-7827 DSF (AGRx) Hon. Dale S. Fischer Courtroom 840 - Roybal DEFENDANT DULUTH HOLDINGS, INC.S NOTICE OF MOTION AND MOTION TO DISMISS THE FOURTH AND FIFTH CAUSES OF ACTION PURSUANT TO FRCP RULE 12(b)(6) [Filed concurrently with Request for Judicial Notice] Date: February 2, 2015 Time: 1:30 PM Crtrm.: 840 Trial Date: None Set

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on February 2, 2015, at 1:30 p.m. in

courtroom 840 of the above-entitled court located at 255 East Temple Street, Los

Angeles, California, Defendant Duluth Holdings, Inc. (Duluth or Defendant)

hereby moves this Court for an order dismissing Plaintiff Don Henleys (Henley

Case 2:14-cv-07827-DSF-AGR Document 21 Filed 12/04/14 Page 1 of 17 Page ID #:50

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4849-1252-1760.1 2DEFENDANT DULUTH HOLDINGS, INC.S NOTICE OF MOTION AND MOTION TO DISMISS THE FOURTH



or Plaintiff) Fourth and Fifth Causes of Action for alleged violations of his

statutory and common law rights of publicity. The basis of the motion to dismiss is

that the Fourth and Fifth Causes of Action fail to state viable claims for relief under

Federal Rules of Civil Procedure Rule 12(b)(6). This motion follows the Local Rule

7-3 meeting of counsel which took place on November 25, 2014.

The allegations in the Complaint and specifically the allegations related to the

Fourth and Fifth Causes of Action relate to the accused advertisement which is

attached as Exhibit B to the Complaint and which is replicated at page 5, lines 17-

28 of the Complaint. As will be set forth in this motion, the facts alleged fail to

establish a viable cause of action because the alleged use of the Plaintiffs name is a

permitted transformative use and thus is protected by the First Amendment of the

United States Constitution.

This Motion is supported by this Notice, the Memorandum of Points and

Authorities submitted herewith, the records and files in this case, the Request for

Judicial Notice filed contemporaneously herewith, and any other evidence or

argument offered at the time of the hearing.

DATED: December 4, 2014 LEWIS BRISBOIS BISGAARD & SMITH LLP By: /s/ Daniel C. DeCarlo Daniel C. DeCarlo

Attorneys for Defendant DULUTH HOLDINGS INC., d/b/a DULUTH TRADING COMPANY


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4849-1252-1760.1 iDEFENDANT DULUTH HOLDINGS, INC.S NOTICE OF MOTION AND MOTION TO DISMISS THE FOURTH



TABLE OF CONTENTS

Page

MEMORANDUM OF POINTS AND AUTHORITIES ............................................. 1I. INTRODUCTION ............................................................................................. 1II. LEGAL ANALYSIS ......................................................................................... 2

A. Applicable Standards For Motions To Dismiss Under Fed. R. Civ. P. 12(b)(6). ...................................................................................... 2

B. Motions To Dismiss Are Especially Appropriate in Cases Addressing First Amendment Concerns. ................................................ 2

C. The Fourth and Fifth Causes of Action for Alleged Violations of Mr. Henleys Rights of Publicity Are Not Viable Because the Accused Advertisement is Protected by the First Amendment. ............. 6

III. CONCLUSION ............................................................................................... 12


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4849-1252-1760.1 iiDEFENDANT DULUTH HOLDINGS, INC.S NOTICE OF MOTION AND MOTION TO DISMISS THE FOURTH



TABLE OF AUTHORITIES

CASES Ashcroft v. Iqbal,

556 U.S. 662 (2009) ......................................................................................... 2

Bd. of Trustees of the State University of New York v. Fox, 492 U.S. 469 (1989) ......................................................................................... 8

Beliveau v. Caras, 873 F.Supp. 1393 (C.D. Cal. 1995) .................................................................. 2

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................................... 2

Central Hudson Gas and Electric Corp. v. Pub. Serv. Commn of New York, 447 U.S. 557 (1980) ......................................................................................... 8

Cervantes v. City of San Diego, 5 F.3d 1273 (9th Cir. 1993) .............................................................................. 2

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) ......................................................................................... 8

Comedy III Productions, Inc. v. Gary Saderup, Inc. 25 Cal. 4th 387(2001) ....................................................................................... 7

Conley v. Gibson, 355 U.S. 41 (1957) ........................................................................................... 2

Eastwood v. Superior Court 149 Cal.App.3d 409 (1983) .............................................................................. 6

Edgar Winter v. D.C. Comics, 30 Cal.4th 881 (2003) ..................................................................................... 10

Hilton v. Hallmark Cards, 599 F. 3d. 894 (9th Cir. 2010) ........................................................................ 12

Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47 (Cal. App. 2d Dist. 2006) .......................................... 3, 8

Ricky Ross v. William Leonard Roberts, 222 Cal.App.4th 677 (2013) .............................................................................. 3

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) ......................................................................................... 8

STATUTORY AUTHORITIES Cal. Civ. Code 3344 .................................................................................................. 6

Cal. Civ. Code 3344(a) ............................................................................................. 6


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4849-1252-1760.1 iiiDEFENDANT DULUTH HOLDINGS, INC.S NOTICE OF MOTION AND MOTION TO DISMISS THE FOURTH



Cal. Civ. Code 3344(e) ............................................................................................. 6

RULES AND REGULATIONS Fed. R. Civ. P. Rule 12(b)(6) ....................................................................................... 2

Fed. R. Evid. 201 ....................................................................................................... 2

Local Rule7-3 .............................................................................................................. 2


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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION Plaintiff contends that Duluth has violated his rights of publicity by creating

an advertisement with a clever pun aimed at poking fun of the fact that Don

Henleys name is made up of a verb and a type of shirt. This is not a violation of

Mr. Henleys rights of publicity, but rather is an expression of free speech which

uses portions of Mr. Henleys name in a transformative nature invoking the

protection of the First Amendment of the United States Constitution.

First, it should be noted that while the Plaintiffs name is Don Henley, his

middle initial is not A but is rather H for Hugh. (See Request for Judicial

Notice No. 1) As such, DON A HENLEY as used in the accused advertisement is

therefore not a literal depiction of Plaintiffs name. Obviously, if the advertisement

used Mr. Henleys literal name (DON H HENLEY or DON HUGH HENLEY) the

advertisement would not only have lost its humor, but it would have made no sense.

Second, the advertisement is obviously a joke (something we presume not

even Mr. Henley disputes) which is why A is used in lieu of Mr. Henleys actual

middle initial. The use of A, coupled with the reference to the Eagles hit Take It

Easy, solidifies the paradoxical and humorous nature of the advertisement. In this

regard, encouraging recipients of the accused advertisement to DON A HENLEY

and further to Take it easy is akin to saying, relax and wear an ultra comfortable

and casual henley shirt and it will only cost you $19.50!

Putting aside the fact that plaintiffs literal name is not being used, it is self

evident that the use that was made of Mr. Henleys name was a joke intended to

highlight the coincidence that Mr. Henley shares his last name with a ubiquitous

casual shirt and that his first name means to wear. Unfortunately for Duluth, Mr.

Henley does not appreciate the humor and instead contends that the accused

advertisement violates both his common law and statutory rights of publicity.

Fortunately for Duluth, the law protects its right to engage in this very type of


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speech notwithstanding the fact that a well known recording artist is the subject of

that humor.

II. LEGAL ANALYSIS A. Applicable Standards For Motions To Dismiss Under Fed. R. Civ.

P. 12(b)(6).

A motion to dismiss tests the legal sufficiency of the claim stated in the

complaint. Fed. R. Civ. P. 12(b)(6); Conley v. Gibson, 355 U.S. 41, 45-56 (1957).

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6) a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Although a

complaint need not include detailed factual allegations, the Plaintiff must plead

more than labels and conclusions or a formulaic recitation of the elements of a

cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The

Court need not accept as true conclusory allegations or legal characterizations. Nor

need it accept unreasonable inferences or unwarranted deductions of fact. Beliveau

v. Caras, 873 F.Supp. 1393, 1395-1396 (C.D. Cal. 1995). In addition to the facts

pled, a court may rely on facts which can be judicially noticed pursuant to Federal

Rules of Evidence 201. Id. As such, dismissal under Fed. R. Civ. P. 12(b)(6) for

the failure to state a claim is proper where it is clear that no relief can be granted

under any set of facts that could be proven consistent with the allegations. Cervantes

v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993).

B. Motions To Dismiss Are Especially Appropriate in Cases Addressing First Amendment Concerns.

California courts have expressed a preference for having First Amendment

defenses resolved quickly. Several points lead us to conclude that deciding the

effect of defendants First Amendment argument here is appropriate. First, such an

issue can often be resolved as a matter of law and is usually appropriate for

summary judgment, or occasionally even demurrer. Ricky Ross v. William Leonard


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Roberts, (2013) 222 Cal.App.4th 677, 684. In cases involving free speech, a speedy

resolution is desirable because protracted litigation may chill the exercise of First

Amendment rights. Kirby v. Sega, (2006) 144 Cal.App.4th 47, 54.

Based on these standards, Defendant requests that the Court dismiss the

Fourth and Fifth Causes of Action because the accused advertisement and in

particular, the alleged wrongful use of a Plaintiffs name in the accused

advertisement is, as a matter of law, protected by the First Amendment as the use is

transformative. The applicable facts as articulated in the Complaint and Defendants

Request for Judicial Notice are as follows:

1. The Eagles are one of the United States most successful bands,

and Don Henley is one of the bands most well-known members.

In addition to being a member of the Eagles, Mr. Henley has

achieved fame as a solo performer and is a public advocate for

artists rights. His name is instantly recognizable by a large

portion of the United States population. (Complaint 1)

2. Duluth Trading Company is a highly successful clothing retailer

located in Wisconsin that markets and sells apparel throughout

the United States. Duluth is a sophisticated marketer that

advertises its products on National and local television stations,

by e-mail and through targeted Internet advertising. (Complaint

2)

3. Duluth Trading Company never sought to obtain a license to

use Mr. Henleys name . . . and Mr. Henley did not grant the

company a license. (Complaint 4)

4. Mr. Henley is a professional musician and a founding member,

drummer and singer of the Eagles, which is one of the most

successful American musical groups. Every album that the

Eagles has released since 1972 has been certified platinum, three


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albums have sold in excess of 10 million copies each, and the

Eagles Their Greatest Hits 1971 1975 album is the best-

selling album of all time in the United States with sales in excess

of 29 million units. The bands first hit single Take it Easy

was the lead track on the Eagles self-titled debut album and on

the bands best-selling greatest hits album. (Complaint 12)

5. As a member of the Eagles, Mr. Henley wrote or performed on

a long list of hits, including Take It Easy, Witchy Woman,

Desperado, and Hotel California. In the 1980s, he launched

a successful solo career independent of the Eagles, during which

time he wrote and performed a number of hits . . . during this

time, Mr. Henley performed concerts around the world . . .

(Complaint 13)

6. Given the timeless nature of the many hits by the Eagles and

Mr. Henley, their appeal continues to endure. In fact, they

remain a part of todays pop culture and their performances

routinely draw large audiences of loyal fans. As a result of Mr.

Henleys undisputed success as both a member of the Eagles and

as a solo artist, he enjoys instant name recognition. (Complaint

14)

7. Defendants alleged unlawful usage of plaintiffs name is set

forth in an advertisement which is duplicated below and which

was e-mailed to defendants nationwide customer base.

(Complaint 16; Exhibit B to the Complaint)


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8. The accused advertisement encourages the recipient of the

advertisement to DON A HENLEY and Take it easy.

(Complaint Exhibit B)

9. The Plaintiffs middle initial is H for Hugh, not A. (Request

for Judicial Notice item No. 1)

10. A henley is a casual top with a scoop neck and a short row of

buttons in the center of the neckline. The shirts depicted in the

accused advertisement are henley shirts. (See Request for

Judicial Notice Nos. 2 and 3 and Complaint Ex. B)


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C. The Fourth and Fifth Causes of Action for Alleged Violations of Mr. Henleys Rights of Publicity Are Not Viable Because the

Accused Advertisement is Protected by the First Amendment.

A common law cause of action for appropriation of name or likeness may be

pleaded by alleging, (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) the lack of consent; and (4) resulting injury." Eastwood v. Superior

Court (1983) 149 Cal.App.3d. 409, 417. The statutory right of publicity is

somewhat narrower as it requires a knowing use and it states in relevant part: Any person who knowingly uses anothers name, voice, signature, photograph or likeness, in any manner or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such persons prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof. California Civil Code section 3344.1

California Civil Code section 3344(a).

In 2001, the California Supreme Court authored a landmark decision which

examined the tension between the rights of free expression protected by the First

Amendment of the United States Constitution with the property rights of celebrities

and others to protect and profit from their rights of publicity. Comedy III

Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387. These publicity

property rights, the Supreme Court noted, have the potential to frustrate one of the

purposes of the First Amendment. Id. at 397. Because celebrities take on public

1 Not all knowing commercial uses of anothers name, even if that use is not protected by the First Amendment, are actionable under the statute. Specifically, the statute also provides: the use of a namein a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the persons name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a). (California Civil Code section 3344(e))


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meaning, the appropriation of their likeness may have important uses in uninhibited

debates on public issues, particularly debates about culture and values. And because

celebrities take on personal meanings to many individuals in the society, the creative

appropriation of celebrity images can be an important avenue of individual

expression. Id.

The accused advertisement pokes fun, (arguably at Mr. Henleys expense) by

amusingly encouraging Duluths customer base to buy a henley shirt and relax.2

While Duluth, of course, (and we believe Duluths customers as well) appreciates

the humor employed by the accused advertisement, it is not necessary to evaluate

qualitatively the artistic or humorous value in the accused advertisement. In other

words, it doesnt matter if the accused advertisement is funny or not as the First

Amendment protects even inartful efforts at free speech including, we would

suggest, unfunny attempts at humor. Moreover, the United States Supreme Court

has made it clear that a work of art is protected by the First Amendment even if it

conveys no discernable message... Id. at 399. The California Supreme Court

settled on the transformative use test to assess when the First Amendment

trumped an individuals right of publicity.3

This inquiry into whether a work is transformative appears to us to be 2 The accused advertisement was e-mailed to Duluths nationwide customer base. (Complaint 16 lines 12 through 15). A review of Duluths catalogs and website will quickly reveal that this type of humorous advertisement is a hallmark of Duluths style. 3 During the meet and confer, Plaintiff counsel suggested that the first amendment may not be a valid defense in rights of publicity cases when the alleged violation is contained in an advertisement. In fact, commercial speech is indeed entitled to first amendment protection. Even pure commercial speech is entitled to significant First Amendment protection. Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47 (Cal. App. 2d Dist. 2006) citing City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423 (1993); Bd. of Trustees of the State University of New York v. Fox, 492 U.S. 469, 473-74 (1989); Central Hudson Gas and Electric Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).


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necessarily at the heart of any judicial attempt to square the right of publicity with

the First Amendment. Id. at 404. The California Supreme Court then went on to

explain that there must be something more than a literal use of an individuals right

of publicity to qualify as a transformative use protected by the First Amendment.

When artistic expression takes the form of a literal depiction or imitation of a

celebrity for commercial gain, directly trespassing on the right of publicity without

adding significant expression beyond that trespass, the state law interest in

protecting the fruits of artistic labor outweighs the expressive interests of the

imitative artist. Id., at 405. In summing up this concept, the California Supreme

Court stated: On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interests protected by the right of publicity. As has been observed, works of parody or other distortions of the celebrity figure are not, from the celebrity fans viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect. Accordingly, First Amendment protection of such works outweighs whatever interest the State may have in enforcing the right of publicity. (internal citations omitted) Id.

The California Supreme Court also cautioned against an overly rigid

formulaic approach noting that the transformative elements or creative

contributions that require First Amendment protection are not confined to parody

and can take many forms, from factual reporting to fictionalized portrayal to subtle

social criticism. (internal citations omitted) Id. at 406. The court then summed up

the transformative use analysis as follows: In sum, when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebritys fame. Id. at 407.

In his treatise on the rights of privacy and publicity, Professor J. Thomas

McCarthy identified five factors that Comedy III articulated relative to the

transformative use test. Professor McCarthy identified these factors as the


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following:

1. If the celebrity likeness is one of the raw materials from which an

original work is synthesized, it is more likely to be transformative than if the

depiction or imitation of the celebrity is the very sum and substance of the work in

question;

2. Second, the work is protected if it is primarily the defendants own

expression as long as that expression is something other than the likeness of the

celebrity. Professor McCarthy notes that this factor required an examination of

whether a likely purchasers primary motivation is to buy a reproduction of the

celebrity, or to buy the expressive work of that artist;

3. Avoid making judgments concerning the quality of the artistic

contribution. The court should conduct an inquiry more quantitative than qualitative

and ask whether the literal and imitative or the creative elements predominate in the

work;

4. In close cases a subsidiary inquiry should be employed, namely,

whether the marketability and economic value of the challenged work derive

primarily from the fame of the celebrity depicted;

5. Finally, the California Supreme Court indicated that when an artists

skill and talent is manifestly subordinated to the overall goal of creating a

conventional portrait of a celebrity so as to commercially exploit his or her fame

the work is not transformative.

(J. Thomas McCarthy, The Rights of Publicity and Privacy, Section 8:72, 2nd

Edition 2012).

While obviously not all the factors outlined above apply to this case

(principally because the challenged work here uses a name as opposed to an image)

applying the overall test and the factors that do apply, we would suggest, illustrates

that the challenged work here -the accused advertisement- is transformative. Of

significance, the artistic elements outweigh the literal elements. The accused


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advertisement can not fairly be viewed as an endorsement as the accused

advertisements value comes not from the use of Mr. Henley name qua his name

(e.g. the use of A in lieu of his actual initial H is definitive on that point) but

rather from the humor that is built around his name.

Consistent with the above, in a subsequent case the California Supreme Court

expanded further on the transformative use test by explaining that, if the

marketability and economic value of the challenged work do not derive primarily

from the celebritys fame, there would generally be no actionable right of publicity.

When the value of the work comes principally from some source other than the

fame of the celebrity from the creativity, skill and reputation of the artist- it

may be presumed that sufficient transformative elements are present to

warrant First Amendment protection. Edgar Winter v. D.C. Comics (2003) 30

Cal.4th 881, 889 quoting from Comedy III at 407. (Emphasis added). Can it really

be reasonably argued that the value in the accused advertisement derives from Mr.

Henleys fame (whatever that may be) as opposed to the creativity and skill of the

author of the accused advertisement?

The accused advertisement does not leverage Mr. Henleys celebrity or

endorsement to sell merchandise. To the contrary, what is exploited is the humor in

the incongruity inherent in the fact that Mr. Henley shares his last name with a

ubiquitous casual shirt that is so ordinary it sells for $19.50. Indeed, a henley shirt

is as unremarkable as Mr. Henley is remarkable. (Complaint 12, 13, 14). After all,

Mr. Henley is a well-known American musician who has been a part of some of the

best selling music of all time in the United States. (Complaint 12, 13, 14.) Not

many Americans can say the same about themselves. But just about everyone

probably has a henley shirt somewhere in their home right now.

Further, that Mr. Henleys first name means to wear and that Duluth created

an advertisement that incorporates that amusing fact in a way that plays off of Mr.

Henleys name is exactly the type of creative element that supports the


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transformative use test.4 Duluth sells clothing, including henley shirts. Duluth then

identified that this clever juxtaposition could be made in a humorous manner to

impart upon the viewer of the advertisement, not that Mr. Henley was somehow

endorsing a $19.50 shirt, but rather that Duluth is a funny company and is selling a

$19.50 shirt. There is no literal depiction of Mr. Henley either via image or even

name as Duluth specifically does not use his actual middle initial H because to do

so would completely undermine the humor and indeed the very point of the accused

advertisement. Duluth combined the synonymous and mixed nature of Mr.

Henleys name into an amusing advertisement that constitutes a protected

transformative use.

In the final analysis, it must be kept at the forefront that the right of publicity

is not absolute and that it is essentially an economic right. What the right of

publicity holder possesses is not a right of censorship, but a right to prevent others

from misappropriating the economic value generated by the celebritys fame

through the merchandising of the name, voice, signature, photograph or likeness of

the celebrity. Winter, supra at 890. Duluth is not merchandising Mr. Henleys

name -quite the contrary- it is making a joke and Duluths right to make a joke at

Mr. Henleys expense (whether that joke is funny or not) must be protected under

the First Amendment. While it is ultimately a question of fact whether the accused

advertisement trespasses on Mr. Henleys rights of publicity5, we suggest that all of

the facts necessary for the court to conclude the issue in Duluths favor are before

the court now. We submit that there is no means to interpret the accused

advertisement as interfering with the type of economic interest protected by right of 4 Would Neal Diamond have a basis to complain if a jewelry company invoked his name in a humorous advertisement that encouraged diamond shoppers to remember to kneel when proposing? Would Donna Summer have cause to complain if a clothier invoked her name in an advertisement somehow pitching summer dresses (don a summer dress this year)? 5 Hilton v. Hallmark Cards, 599 F. 3d. 894, 910 (9th Cir. 2010).


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publicity, whether under the common law or the statutory right. The accused

advertisement is not an endorsement by Don H. Henley, but rather it is an

advertisement that is infused with Duluths own humorous and artistic expression of

the incongruent notion that a well known American musician shares his last name

with a casual shirt.

III. CONCLUSION For the above referenced reasons, Duluth respectfully requests that the court

dismiss without leave to amend, Plaintiffs fourth and fifth causes of action.

DATED: December 4, 2014 LEWIS BRISBOIS BISGAARD & SMITH LLP By: /s/ Daniel C. DeCarlo Daniel C. DeCarlo

Attorneys for Defendant DULUTH HOLDINGS INC., d/b/a DULUTH TRADING COMPANY


Henley v. Duluth Motion to Dismiss

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Transcript of Henley v. Duluth Motion to Dismiss