Case 2:18-cv-13902-GCS-APP ECF No. 1 filed 12/14/18

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JARED ALLEN
Plaintiff,
v.

JEFF MORTON
PAIN FREE LIFE CENTERS OF
MICHIGAN, LLC

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Case No.

Defendants.
COMPLAINT
Plaintiff Jared Allen, by counsel, for his Complaint against Defendants Jeff
Morton and Pain Free Life Centers of Michigan, LLC, alleges for his Complaint as
follows:
PARTIES, JURISDICTION AND VENUE
1.

This Complaint arises under the Lanham Act, 15 U.S.C. § 1125(a), as

amended, and the statutory and common law of Tennessee and Michigan. This
court has subject matter jurisdiction under 15 U.S.C. § 1121, 28 U.S.C. § 1331,
and 28 U.S.C. § 1367(a) in that this case arises under the Lanham Act. This court
also has subject matter jurisdiction under 28 U.S.C. § 1332(a), there being

 Case 2:18-cv-13902-GCS-APP ECF No. 1 filed 12/14/18

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complete diversity of citizenship among the parties and the matter in controversy
exceeding, exclusive of interest and costs, the sum of $75,000.
2.

Venue is proper under 28 U.S.C. § 1391(b) because a substantial part

of the events giving rise to the claims occurred in this District and this is a District
in which the Defendants may be found.
3.

Plaintiff Jared Allen is an individual whose legal residence is in the

State of Tennessee.
4.

Defendant Jeff Morton (“Morton”) is an individual whose legal

residence is, on information and belief, in the State of Michigan.
5.

Defendant Pain Free Life Centers of Michigan, LLC (“PFLC”), is

now, and at all times relevant to this complaint was, a limited liability company
organized and existing under the laws of the State of Michigan, with its principal
place of business located at 6585 Rochester Road, Suite 103, Troy, Michigan
48085 in Oakland County, Michigan. Upon information and belief, all members of
PFLC are residents of the State of Michigan.
6.

Personal jurisdiction over Defendants is appropriate because a

substantial part of the events and omissions giving rise to Plaintiff’s claims
occurred in this District and because, also on information and belief, Defendants
reside in this District.

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NATURE OF THE ACTION
7.

Plaintiff is a former professional football defensive end who played

professionally for the Kansas City Chiefs, the Minnesota Vikings, the Chicago
Bears, and the Carolina Panthers. Plaintiff, who currently resides in Tennessee, is
well-known nationally and internationally for his football career, as well as his
current commitment to support veterans through his non-profit organization, Jared
Allen’s Homes for Wounded Warriors.
8.

Plaintiff has been featured as a guest commentator and co-host for

ESPN, along with numerous other television and magazine appearances,
contributing to national awareness of Plaintiff and the value of Plaintiff’s rights in
his image and persona.
9.

Plaintiff has licensed rights to use his likeness, name, and other

similar indicia in commercials and other advertisements, and such licenses are
managed by Optimum Sports Management, Inc.
10.

Defendant PFLC is a limited liability corporation registered to do

business in the state of Michigan. Defendant offers laser therapy and other similar
treatments and targets its advertisements to individuals who suffer from injuries
and/or chronic pain.
11.

Defendant Morton serves as the Center Director and registered agent

of Defendant PFLC, and as a result is an authorized agent or representative of

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Defendant PFLC.

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Upon information and belief, the deceptive and infringing

conduct of Defendant PFLC was authorized, directed, or undertaken by Defendant
Morton.
12.

On or around October 2018, PFLC, through its authorized agents and

representatives, including Defendant Morton, without Plaintiff’s prior knowledge
or consent, placed an advertisement (shown below) in Seen Magazine featuring
Plaintiff’s image, his personal health story, and statements secured from a news
article, with the intention and effect of misappropriating the valuable goodwill and
reputation associated with Plaintiff and leading consumers to believe that Plaintiff
received treatment and otherwise endorses Defendants. Based on information and
belief, Defendant Morton personally sent the advertisement and instructions to
Seen Magazine.

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13.

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Plaintiff was alerted to this unauthorized use by a relative who, while

traveling through Michigan, noticed the advertisement. Upon learning of this
unauthorized use, Plaintiff also learned that Defendants had been using Plaintiff’s
likeness

on

the

Pain

Free

Life

Centers’

website

found

at

www.painfreelifecenters.com and in social media posts dating back to at least early
2017, as shown in the screenshots from Defendant PFLC’s website and social
media accounts below. Upon receipt of a cease and desist letter and reminder from
Plaintiff’s counsel, Defendants subsequently removed the unauthorized references
from the website.

14.

Upon information and belief, Defendant PFLC, through its authorized

agents and representatives, including Defendant Morton, personally sent the
deceptive and infringing advertisement to the magazine, knowingly, willfully,
intentionally, and in conscious disregard of Plaintiff’s rights, thereby engaging in

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unauthorized and deceptive behavior.
15.

This unauthorized use of Plaintiff’s name, image, and statements

creates a false and misleading representation that is likely to deceive customers
into believing that: (i) there is an affiliation or association between Defendants and
Plaintiff; (ii) that Plaintiff received treatment from Defendant PFLC; and (iii) that
Plaintiff endorses or sponsors Defendant PFLC’s services.
16.

Defendants’ use of Plaintiff’s name, image, and statements is also a

violation of Plaintiff’s rights under federal and state unfair competition, deceptive
trade practices, and false advertising laws.
17.

Defendants’ use of Plaintiff’s name, image, and statements also

violates Plaintiff’s rights as a resident of the state of Tennessee under the
Tennessee Personal Rights Protection Act of 1984, T.C.A. § 47-25-1101 et seq.,
and Tennessee common law rights of publicity and privacy.
FIRST CAUSE OF ACTION
False Endorsement, False Advertising, and Unfair Competition in Violation of
15 U.S.C. § 1125
18.

Plaintiff realleges paragraphs 1 through 17 of this Complaint.

19.

Defendants’ described acts in connection with the promotion of

Defendant PFLC’s services constitute the use of words and images, false
descriptions, and false and misleading representations which are likely to cause,
and on Plaintiff’s information and belief have caused, confusion and mistake.

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20.

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Defendants’ false and misleading representations are likely to deceive

as to the affiliation, connection, and association of Defendants and their services
with Plaintiff.

Defendants’ false and misleading representations are likely to

deceive as to the sponsorship, endorsement, and approval of Defendants’ services
by Plaintiff.
21.

Defendants’ described acts also constitute the use of false descriptions

and false and misleading representations of fact in commercial advertising and
promotion, misrepresenting the nature, character, and quality of Defendants’
services.
22.

As a result of Defendants’ acts and representations, members of the

public are induced to make payments to Defendants in the mistaken belief that
their services are endorsed by, associated with, or affiliated with Plaintiff.
23.

Defendants have published statements in connection with their

services in interstate commerce and with knowledge of the falsity of the
descriptions and misleading representations, causing the same to be transported or
used in interstate commerce.
24.

Plaintiff has devoted significant time and resources into protecting

and maximizing his public image and goodwill with advertisers and sponsors.
Defendants have promoted Defendants’ advertised services as described above
with the intention and effect of misappropriating the valuable goodwill and

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reputation associated with Plaintiff.
25.

The foregoing actions of Defendants violate Plaintiff’s rights under

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
26.

Defendants’ wrongful conduct has permitted or will permit Defendant

PFLC and its advertisers to increase their sales and their public exposure on the
strength of Plaintiff’s worldwide marketing, advertising, and consumer
recognition.
27.

Defendants engaged in the above-described wrongful actions

knowingly, willfully, and intentionally, in conscious disregard of Plaintiff’s rights,
and in the face of demands that it cease its unlawful activities. This misconduct
was also fraudulent, in that the public was led to believe falsely that Plaintiff
consented to such commercial use of his name and identity, and was associated
with, approved of, and endorsed Defendant PFLC’s services.
28.

As a direct and proximate result of Defendants’ acts, Plaintiff has

suffered and will continue to suffer damage to his commercial, competitive, and
other interests in a sum yet to be determined, but in any event exceeding $75,000.
Plaintiff is entitled to recover from Defendants the remedies provided for in 15
U.S.C. §§ 1116 et seq.
29.

The described acts of Defendants have caused and, unless restrained

by the court, will continue to cause great and irreparable injury to Plaintiff. It

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would be difficult to ascertain the amount of compensation which could afford
Plaintiff adequate relief for such continuing acts, and a multiplicity of judicial
proceedings would be required. Moreover, there would be the likelihood that the
consuming public would be deceived by Defendants’ false endorsement and
misleading advertising. Plaintiff’s remedy at law is not adequate to compensate for
the injuries threatened. By reason of the foregoing, Plaintiff asserts a claim against
Defendants for injunctive relief.
SECOND CAUSE OF ACTION
Rights of Publicity Violation of Tennessee Annotated Code § 47–25–1101 et
seq. and Tennessee Common Law
30.

Plaintiff realleges paragraphs 1 through 29 of this Complaint.

31.

As a resident of Tennessee, Plaintiff’s rights of publicity and privacy

are governed by the laws of Tennessee.

The described wrongful acts of

Defendants constitute a violation of Tennessee’s Right to Publicity pursuant to
Tenn. Code Ann. § 47–25–1101 et seq., which is known as “The Personal Rights
Protection Act of 1984,” which recognizes that an individual has “a property right
in the use of his name, photograph or likeness in any medium in any manner.”
32.

Defendants’ acts violate Tenn. Code Ann. § 47–25–1105(a), which

prohibits the knowing use of an “individual’s name, photograph, or likeness in any
medium, in any manner…as an item of commerce for purposes of advertising
products, merchandise, goods, or services, or for purposes of fund raising…[or]

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purchases of products, merchandise, goods, or services, without such individual’s
prior consent.”
33.

Plaintiff did not assign rights to his likeness, name, and other similar

indicia to Defendants or otherwise authorize the use of his likeness by Defendants.
34.

Defendants knowingly exploited Plaintiff’s likeness, name, and other

similar indicia through various mediums for the purpose of advertising their
services, commercial benefit, and personal profit.
35.

Tennessee concurrently recognizes a common law right of publicity,

which protects individuals from the knowing use likeness, name, and other similar
indicia.
36.

Defendants’ actions in misappropriating Plaintiff’s likeness, name,

and other similar indicia in order to solicit business for its personal commercial
benefit also violate the common law of Tennessee.
37.

As a direct and proximate result of Defendants’ misconduct,

Defendants have been unjustly enriched at the expense of Plaintiff in a substantial
sum, and Plaintiff is entitled to the restitution of that sum, which is as yet unknown
to him. In addition, Plaintiff is entitled to disgorgement of Defendants’ ill-gotten
gains in order to prevent further acts of unfair competition.
38.

The described acts of Defendants have caused and, unless restrained

by the court, will continue to cause great and irreparable injury to Plaintiff. It

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would be difficult to ascertain the amount of compensation which could afford
Plaintiff adequate relief for such continuing acts, and a multiplicity of judicial
proceedings would be required.

Moreover, Plaintiff’s rights of publicity and

privacy and the value of his licensing rights in his image have been harmed by
Defendants’ unauthorized use of Plaintiff’s name, image, and statements.
Plaintiff’s remedy at law is not adequate to compensate for the injuries threatened.
By reason of the foregoing, Plaintiff asserts a claim against Defendants for
injunctive relief.
THIRD CAUSE OF ACTION
Unfair Competition in Violation of Michigan Common Law and
Michigan Compiled Laws § 445.903
39.

Plaintiff realleges paragraphs 1 through 38 of this Complaint.

40.

The described wrongful acts of Defendants constitute unfair

competition in violation of M.C.L. § 445.901, et seq., in the following respects:
a.

Defendants’ acts violate 15 U.S.C. § 1125(a), M.C.L. §

445.903, and Michigan common law regarding invasion of privacy,
misappropriation of rights of publicity, and, consequently, constitute
unlawful business acts or practices within the meaning of M.C.L § 445.903.
b.

Defendants’ conduct constitutes unfair business acts or

practices within the meaning of M.C.L. § 445.903.
c.

Defendants’ actions are likely to mislead the general public and,

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consequently, constitute fraudulent business acts or practices within the
meaning of M.C.L. § 445.903
d.

Defendants’ actions are likely to mislead the general public and,

consequently, constitute unfair, deceptive, untrue or misleading advertising
within the meaning of M.C.L. § 445.903.
e.

Defendants’ acts of untrue and misleading advertising, as more

fully set forth above, violate M.C.L. § 445.903.
41.

The conduct of Defendants, as alleged above, constitutes unfair

competition against Plaintiff and unfair business practices in violation of the
common law of Michigan.
42.

The described wrongful acts of Defendants also constitute deceptive

advertising, unfair business practices, and unfair competition, in that the public has
been and will continue to be misled regarding the affiliation, connection or
association of Defendant PFLC’s services with Plaintiff, and the origin,
sponsorship, and approval of its services.
43.

As a direct and proximate result of Defendants’ misconduct,

Defendants have been unjustly enriched at the expense of Plaintiff in a substantial
sum, and Plaintiff is entitled to the restitution of that sum, which is as yet unknown
to him. In addition, Plaintiff is entitled to disgorgement of Defendants’ ill-gotten
gains in order to prevent further acts of unfair competition.

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44.

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The described acts of Defendants have caused and, unless restrained

by the court, will continue to cause great and irreparable injury to Plaintiff. It
would be difficult to ascertain the amount of compensation which could afford
Plaintiff adequate relief for such continuing acts, and a multiplicity of judicial
proceedings would be required. Moreover, there would be the likelihood that the
consuming public would be deceived by Defendants’ unfair and deceptive
activities. Plaintiff’s remedy at law is not adequate to compensate for the injuries
threatened. By reason of the foregoing, Plaintiff asserts a claim against Defendants
for injunctive relief.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff requests entry of judgment in Plaintiff’s favor and
against Defendants that:
1.

Defendants be adjudged to have violated the provisions of 15 U.S.C. §

1125, Tenn. Code Ann. § 47–25–1101 et seq., and M.C.L. § 445.901 et seq. by
using Plaintiff’s name, image, and statements without Plaintiff’s consent.
2.

Defendants be adjudged to have violated the provisions of 15 U.S.C. §

1125(a) and M.C.L. § 445.901 et seq. by its false endorsements, false descriptions,
and false advertising.
3.

Defendants be adjudged to have engaged in unfair competition in

violation of federal and Michigan common law.

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4.

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Defendants and all those persons in active concert or participation

with them, be immediately and permanently enjoined from engaging in further
unlawful acts and false advertising concerning Plaintiff.
5.

Defendants be required to permanently remove any reference to

Plaintiff from any and all websites or social media accounts they maintain or
control, and make no further representations or references regarding Plaintiff in
connection with Defendant PFLC’s services.
6.

Defendants be required to account to Plaintiff for any and all profits

derived by them by reason of Defendants’ acts complained of here, and any
damages sustained by Plaintiff by reason of Defendants’ acts.
7.

Defendants be required to disgorge and pay over to Plaintiff any and

all profits they earned and any other unjust enrichment that they received from
their unlawful conduct.
8.

Damages be awarded in an amount as shall be found to have been

caused by Defendants’ unlawful conduct, but in any event exceeding $75,000.
9.

Such damages and profits be trebled and awarded to Plaintiff pursuant

to 15 U.S.C. § 1117.
10.

Punitive damages be awarded against Defendants in an amount

sufficient to punish Defendants and to deter Defendants and others from engaging
in similar wrongdoing.

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11.

Plaintiff be awarded costs and attorney fees in prosecuting this action.

12.

Plaintiff be granted such other relief as the court may find just and

proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands trial by jury of all issues so triable under the law as
provided by Rule 38 of the Federal Rules of Civil Procedure.

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Dated: December 14, 2018

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Respectfully submitted,
By: /s/ Andrew M. Pauwels
Deborah J. Swedlow (P67844)
Andrew M. Pauwels (P79167)
HONIGMAN
315 East Eisenhower Parkway
Suite 100
Ann Arbor, MI 48108-3330
(734) 418-4268
(734) 418-4269 (facsimile)
bswedlow@honigman.com;
apauwels@honigman.com

Michelle Browning Coughlin
(seeking admission)
Sussan Harshbarger (seeking
admission)
Matthew Lubozynski (seeking
admission)
WYATT, TARRANT & COMBS,
LLP
500 West Jefferson Street
Suite 2800
Louisville, KY 40202-2898
(502) 589-5235
mcoughlin@wyattfirm.com
sharshbarger@wyattfirm.com
mlubozynski@wyattfirm.com

Counsel for Plaintiff Jared Allen

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