MEMORANDUM AND ORDER
This matter comes before the court on defendant AT & T Mobility, LLC’s (“AT & T” or “defendant”) 1 motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff General Charles E. “Chuck” Yeager (“Yeager” or “plaintiff’) opposes the motion. For the reasons set forth herein, 2 defendant’s motion for summary judgment is DENIED.
BACKGROUND 3
This case arises out of the use of plaintiffs name in a publication issued by Cingular Wireless entitled “Cingular Wireless Announces Enhanced Emergency Preparedness Program for 2006 Hurricane Season” (the “Publication”). 4 (UMF ¶ 1.) Plaintiff Yeager served in the United States Army Air Corps for many years. (Dep. of General Charles “Chuck” Yeager (‘Yeager Dep.”), Ex. B to Decl. of Steven E. McDonald (“McDonald Deck”) [Docket *1094 # 57], filed Oct. 13, 2009, at 13.) He was trained to be a combat pilot and a test pilot after enlisting at the age of eighteen. (Id.) On October 14, 1947, as part of the mission of the United States Air Force to try to break the sound barrier, Yeager was the first pilot to exceed the speed of sound. (Id. at 17-18.)
The Publication at issue was released on May 17, 2006 through PR Newswire and posted on Cingular’s website. (UMF ¶ 2.) The Publication is 755 words long and contains information about Cingular’s preparedness for disasters, such as hurricanes, through its emergency preparedness equipment that includes its MACHI and MACH2 mobile command centers. (UMF ¶¶ 3, 15.) In the fifth paragraph, the Publication also provides:
“Nearly 60 years ago, the legendary test phot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers,” de la Vega said.
(UMF ¶ 4.)
The Publication neither includes a picture of plaintiff nor mentions plaintiffs name in any headline or headings. (UMF ¶¶ 7-8.) It does not propose a commercial transaction, nor does it offer for sale any specific products or services. (UMF ¶ 8.) The Publication also does not state that plaintiff endorses or has enjoyed benefits from Cingular, AT & T, or any of their products or services. (UMF ¶¶ 10-11.)
The executive director of media relations for AT & T Mobility who wrote the Publication, Mark Siegel (“Siegel”), testified that the purpose of the press release was “two-fold”. (DF ¶ 5; Dep. of Mark Siegel (“Siegel Dep.”) at 16:18.) First, AT & T sought to demonstrate its commitment “to improve our efforts to restore services as quickly as possible after a natural disaster.” (Siegel Dep. at 16:18-21.) Second, it sought “to create positive associations in people’s mind with the AT & T brand so they would think highly of the company.” (Id. at 16:22-23.) Siegel noted the connection between MACH, the acronym for defendant’s technology, and MACH, the sound barrier; he crafted the Publication to make an association between breaking the sound barrier and breaking new barriers of disaster preparedness. (Id. at 18:12-17; DF ¶ 8.) Plaintiff contends that AT & T used his name within the Publication in order capitalize upon his name, reputation, and iconic image. Plaintiff further asserts that his name was used as a “hook” to entice an audience to read about defendant’s improved services. (See DF ¶¶ 6-7, 11; Pis.’ Opp’n to Def.’s Mot. for Summ. J. (“Opp’n”), filed Oct. 13, 2009, at 3.)
Plaintiff brings claims for (1) violation of California common law right to privacy/right to control publicity and likeness (also known as a common law claim for commercial misappropriation); (2) violation of California Civil Code § 3344; (3) violation of the Lanham Act, 15 U.S.C. § 1125(a); (4) unjust enrichment; (5) violation of California Business and Professions Code § 17200; and (6) violation of California False Advertising Act. (Compl., filed Nov. 21, 2007.) Defendant seeks summary judgment against plaintiff on all claims for relief. 5
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment where “the pleadings, the discovery and disclosure materials on file, and any affidavits show
*1095
that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see California v. Campbell,
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact.
See Celotex Corp. v. Catrett,
Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party.
See Triton Energy Corp. v. Square D Co.,
ANALYSIS
A. Common Law and Statutory Claims for Misappropriation
Plaintiff claims that defendant violated his rights to control the use of his name and identity because defendant made unauthorized use of plaintiffs name to promote defendant’s unrelated products and services. (Pl.’s Opp’n Mot. Summ. J. (“Pl.’s Opp’n”), filed Oct. 13, 2009, at 9.) “California recognizes, in its common law and its statutes, ‘the right of a person whose identity has commercial value-most often a celebrity-to control the commercial use of that identity.’ ”
Hoffman v. Capital Cities/ABC, Inc.,
*1096 Defendant argues that summary judgment should be granted as to both plaintiffs common law and statutory claims based upon the applicability of two affirmative defenses, arguing that (1) the First Amendment protects the Publication because it contains newsworthy matter and is not commercial speech; and (2) the doctrine of incidental use protects the “fleeting and inconsequential” use of plaintiffs name. (Def.’s Mem. Mot. Summ. J. (“Def.’s Mem.”), filed Oct. 1, 2009.)
1. The First Amendment Defense
“Under both the common law cause of action and the statutory cause of action, ‘no cause of action will lie for the publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it.’ ”
Downing,
The First Amendment defense extends to publications about people “who, by their accomplishments, ... create a legitimate and -widespread attention to their activities.”
Eastwood v. Superior Court,
a. Commercial Speech
Defendant argues that the Publication is noncommercial speech that deserves the full protection of the First Amendment. (Def.’s Mem. at 10-11.) Specifically, defendant contends it is undisputed that the Publication does not propose any commercial transactions and does not offer any products or services. (Id.)
The “core notion” of commercial speech is that it “does not more than propose a commercial transaction.”
Bolger v. Youngs Drug Prods. Co.,
Informational publications that refer to or promote a specific product, but are not mere proposals to engage in commercial transactions, present a closer question regarding the appropriate classification of the type of speech.
Bolger v. Youngs Drug Prods. Corp.,
In this case, looking at all of its characteristics, the Publication is properly categorized as commercial speech. The central theme of the Publication is how defendant’s emergency preparedness program enhances its wireless services. Defendant’s name as a service provider is mentioned multiple times throughout the Publication. Further, the Publication did not seek to inform the reader about emergency preparedness generally, but rather how defendant’s wireless service specifically had been improved to handle such emergencies. Indeed, the writer of the Publication testified that the purpose of the Publication was, in part, to create positive associations with the AT & T brand. (See Siegel Deposition 16:18-23.) As such, it is reasonable to infer that defendant had an economic motivation underlying the Publication’s distribution. Further, defendant’s name as a service provider is mentioned multiple times throughout the Publication. While none of these facts alone is necessarily dispositive, a review of the Publication as a whole supports a finding that it is commercial speech.
*1098
The facts of the case are similar to those the Court found dispositive in
Bolger,
Defendant argues that, similar to
Hoffman,
the commercial aspects of the Publication are intertwined with expressive aspects, thus protecting the Publication as a whole as noncommercial speech. (Def.’s Mem. at 11.) However, the facts before the court in
Hoffman
are distinguishable from the facts before the court in this case. At issue in
Hoffman
was a feature article in a magazine that complemented the issue’s focus on the history of Hollywood.
Hoffman,
Therefore, the court concludes that the Publication at issue is commercial speech for purposes of the First Amendment defense.
b. Newsworthiness
Defendant also argues that the First Amendment protects the Publication’s use of plaintiffs name because the Publication reported on matters of public interest. (Def.’s Mem. at 9.) Specifically, defendant argues that the Publication was issued subsequent to the devastation wrought by Hurricane Katrina, Hurricane Wilma, and Hurricane Rita. 7 Defendant characterizes the information in the Publication as information addressing public safety concerns and whether its customers can continue to rely on defendant’s services during a natural disaster. Plaintiff contends that defendant’s Publication was not issued solely to convey information of public interest, but rather, “was directed for a profit commercial enterprise.” (Opp’n at 3.)
*1099
Where a plaintiffs identity is used, without consent, to promote an unrelated product, such speech is actionable.
See Downing,
In this case, the context of the communication and the nature of the information conveyed demonstrate that plaintiff Yeager’s name and accomplishments were used to attract attention to defendant’s unrelated wireless services. While emergency preparedness and the availability of wireless services following a natural disaster are matters or public interest and concern, as set forth above, the Publication in this case was not purely informational in nature; rather, it is properly characterized as commercial speech because,
inter alia,
it aimed to positively market defendant’s services by linking them to that public concern. Further, plaintiffs name and accomplishments in breaking the sound barrier are wholly unrelated to defendant’s mobile command centers and cellular service in emergency situations.
8
Indeed, as reflected by Siegel’s testimony, the use of plaintiffs name was carefully crafted as part of a strategy to promote defendant’s brand.
{See
Siegel Deposition, at 11:9-12, 16:16-23.) Even if the content of defendant’s Publication could otherwise be considered within the public interest, the illustrative use of plaintiffs name does not contribute significantly to that interest; Like the use in
Downing,
which the court characterized as “window-dressing,” the connection between public safety issues during hurricane season and the use of plaintiffs name is tenuous at best.
See Downing,
Accordingly, defendant is not entitled to summary judgment on its asserted First Amendment defense.
2. Incidental Use
“The contours of the incidental use doctrine are not well-defined in Cali
*1100
fornia.”
Aligo v. Time-Life Books, Inc.,
Whether the use of a plaintiffs name or likeness falls within the incidental use exception to liability “is determined by the role that the use of the plaintiffs name or likeness plays in the main purpose and subject of the work at issue.”
Preston v. Martin Bregman Prods., Inc.,
In determining whether the doctrine of incidental use applies, courts have considered “(1) whether the use has a unique quality or value that would result in commercial profit to the defendant, (2) whether the use contributes something of significance, (3) the relationship between the reference to the plaintiff and the purpose and subject of the work, and (4) the duration, prominence or repetition of the likeness relative to the rest of the publication.”
Aligo,
In this case, under the circumstances in which defendant’s name and identity was used, the court cannot conclude that the incidental use doctrine applies. Plaintiffs name and identity is unique and non-fungible in that he is the person associated with breaking the sound barrier for the first time. The use of his name and identity links defendant’s new technology to plaintiffs name and accomplishments. Indeed, as set forth above, the evidence reveals that the Publication was crafted in order to make that very association and to “create positive associations in people’s mind with the AT & T brand.” (Siegel Dep. at 16, 18.) While the use of plaintiffs name and reference to his accomplishment was a small part of the 755-word Publication, the association of defendant’s services with a historical feat is a use that may help to pique the interest of a newsman deciding whether to follow up on a press release.
(See
Deposition of Albert Levy at 111:4-19.) Therefore, like in
Pooley,
the use of plaintiffs name and identity uniquely enhanced the marketability of defendant’s service.
See also Henley v. Dillard Dep’t Stores,
Because under the facts before the court the defendant cannot establish as a matter of law that its use of plaintiffs name and identity is protected by the First Amendment or by the incidental use doctrine, defendant’s motion for summary judgment on plaintiffs common law and statutory claims of commercial misappropriation is DENIED.
B. Lanham Act
Plaintiff claims that defendant violated the Lanham Act, specifically 15 U.S.C. § 1125(a), because the appearance of plaintiffs name in the Publication is likely to cause confusion about plaintiffs affiliation or connection to defendant. (Pl.’s Opp’n at 11.) “Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), prohibits,
inter alia,
the use of any symbol or device which is likely to deceive consumers as to the association, sponsorship, or approval of goods or services by another person.”
Wendt v. Host Int’l,
Defendant contends that plaintiffs claim fails as a matter of law because (1) plaintiff must and cannot demonstrate triable issues of fact regarding actual confusion because the Publication does not contain any express endorsement; and (2) the nominative fair use doctrine supports summary judgment. 9 (Def.’s Mem. at 13,15.)
1. Likelihood Of Confusion
“In cases involving confusion over endorsement by a celebrity plaintiff, ‘mark’ means the celebrity’s persona.”
White,
(1) strength of the plaintiffs mark;
(2) relatedness of the goods;
(3) similarity of the marks;
(4) evidence of actual confusion;
(5) marketing channels used;
(6) likely degree of purchaser care;
(7) defendant’s intent in selecting the mark; and
(8)likelihood of expansion of the product lines.
White,
In this case, plaintiff has presented sufficient evidence regarding likelihood of confusion to withstand summary judgment. Both plaintiff and defendant agree that Yeager is a public figure publicly associated with his accomplishment in breaking the sound barrier. (See Pl.’s Opp’n at 4; Def.’s Mem. at 12.) As such, his “mark” is strong. Further, there is no dispute that defendant used plaintiffs mark in its Publication, which was directed at creating positive associations with its services. A jury could infer that under these facts, defendant’s intent was to capitalize upon the positive associations with plaintiff’s name by implying endorsement in order to achieve its objectives. While there is little relationship between plaintiffs mark and the cellular services in emergency situations and scant specific evidence regarding actual confusion, the court cannot find that defendant is entitled to judgment as a matter of law at this stage in the litigation. 10
*1103 2. Nominative Fair Use
Nominative fair use is a specific defense to claims under the Lanham Act applied to “a class of cases where the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one.”
New Kids On The Block v. News Am. Publ’g, Inc.,
To establish a nominative fair use defense, a defendant must prove three elements:
(1) the product or service in question must be one not readily identifiable without use of the trademark;
(2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and
(3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.
Downing,
Where a celebrity’s name is used in a commercial, there are triable issues of fact regarding whether such use implies endorsement. In
Abdulr-Jabbar;
the defendant car manufacturer used the plaintiffs name in a commercial, comparing the famous basketball player’s college basketball record to the defendant’s awards for its car.
In this case, defendant has failed to meet its burden in establishing that the nominative fair use defense applies as a matter of law. Defendant used plaintiffs name and accomplishments to support its own product, specifically comparing plaintiffs feat in breaking the sound barrier to defendant’s technological advancements. While not featured in a television commercial, the deliberate, closely-tied analogy in *1104 a press release directed to create positive associations with defendant’s product is sufficient to raise a triable issue of fact regarding implied endorsement. 12 Indeed, Victoria Yeager testified that after the press release, she received a few calls inquiring about whether Yeager endorsed AT & T. (Dep. of Victoria Yeager, Ex. H to Stroud Decl., at 134:2-13.) Therefore, on the record before the court, defendant is not entitled to summary judgment on its asserted nominative fair use defense.
Accordingly, defendant’s motion for summary judgment on the Lanham Act claim is DENIED.
C. Plaintiffs Remaining Claims
Finally, defendant contends that plaintiffs claims for violation of California Business and Professions Code § 17200, violation of California False Advertising Act, and unjust enrichment must be dismissed because they are substantially congruent to plaintiffs commercial misappropriation and Lanham Act claims. Because, as set forth above, the court finds defendant’s prior arguments unpersuasive, defendant’s motion for summary judgment on the remaining state law claims is also DENIED.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is DENIED.
IT IS SO ORDERED.
Notes
. On March 27, 2008, pursuant to the parties’ stipulation, the court ordered that AT & T Mobility LLC be substituted as defendant. All other named defendants were dismissed without prejudice. (Stip. & Order [Docket # 12], filed Mar. 27, 2008.)
. Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. See E.D. Cal. L.R. 78-230(h).
. Unless otherwise noted, the facts herein are undisputed. (See Pl.’s Response to Def.’s Separate Statement of Undisputed Material Facts in Supp. of Mot. for Summ. J. (“UMF”) [Docket #56], filed Oct. 13, 2009, at 1-8.) Where the facts are disputed, the court recounts plaintiff's version of the facts. (See Pl.'s Statement of Disputed Facts ("DF”) [Docket # 56], filed Oct. 13, 2009, at 8-12.)
.The complaint alleges that defendant Cingular Wireless LLC issued the material, but the Stipulation and Order was based upon express representations that defendant At & T was responsible for the Publication. (Stip. & Order [Docket # 12].)
. Plaintiff filed a supplemental opposition to which defendant objects. The court considers neither plaintiff’s supplemental opposition nor defendant’s response thereto.
. California Civil Code § 3344(a) provides in relevant part that "[a]ny person who knowingly uses another’s name ... in any manner ... for purposes of advertising or selling, or soliciting purchases of ... goods or services, without such person’s prior consent ... shall be liable for any damages sustained by the person or persons injured as a result thereof.”
. The court notes, however, that the Publication contains no editorial expression related to the specified hurricanes.
. Furthermore, even though plaintiff's achievement may be said to be newsworthy, "its use is not automatically privileged."
See Abdul-Jabbar,
. Defendant also argues that the Lanham Act claim fails because plaintiff, as a public figure featured in a noncommercial speech, bears the burden of proving with clear and convincing evidence that defendant acted with actual malice. However, for reasons mentioned supra, the court does not characterize the Publication as noncommercial speech and, accordingly, need not reach the issue of actual malice.
. The court notes that neither party fully addresses the application of the Sleekcraft factors in their briefs. Rather, defendant only argues that there has been no evidence of actual confusion. While this factor is important, it is not determinative. Further, while somewhat vague, Victoria Yeager testified that she received phone calls regarding confusion as to whether plaintiff endorsed defen *1103 dant's services. (Dep. of Victoria Yeager, Ex. H to Stroud Decl., at 134:2-13.)
. The parties do not discuss the first two elements of this defense, but rather focus their arguments on the third element, the likelihood of consumer confusion regarding endorsement because of defendant’s conduct.
. Furthermore, while defendant argues that its limited reference to plaintiff's name and accomplishment is insufficient to imply endorsement, it fails to proffer any evidence regarding what type of use would imply endorsement for purposes of comparison. Cf. Cairns, 292 F.3d at 1154-55 (holding that the absence of statements regarding authorization that the defendant used in relation to other products supported applicability of nominative fair use defense).