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The particular issues in conflict are the survivability of Heloise's claim for damages for pain and suffering and her cause of action for invasion of privacy and misappropriation of her name and likeness. Section 167 of the Restatement deals specifically with the survivability of a tort cause of action and adopts 145's most significant relationship test. Section 153 of the Restatement deals specifically with rights and liabilities arising from a single multistate publication that constitutes an invasion of privacy and in that context uses the same most significant relationship test as 145. However, 153 advises that "[t]his will usually be the state where the plaintiff was domiciled at the time if the matter complained of was published in that state."
There is no dispute in this case that the publications caused by Shaklee were used as a promotional scheme to enhance Shaklee's sales. That use is for a commercial purpose. Further, there is no dispute that the advertisements in the Shaklee Survey and on the rear cover of the book identified the plaintiff, Heloise. Shaklee contends that the Survey advertisements and the language used on and in the book did not constitute an endorsement of Shaklee or Shaklee products but were intended solely to identify and sell the book authored by Heloise. This court would agree with the legal premise upon which Shaklee bases this argument, i. e., that one who legally obtains the rights to sell a book has a right to use the author's identity as such to advertise the book for sale. See, Gee v. CBS, Inc., 471 F. Supp. 600 (E.D.Pa.1979). However, the court rejects Shaklee's factual argument. The February 1973 Shaklee Survey advertisement was a very clever and ingenious device to link Heloise as a person to Shaklee and Shaklee products, as opposed to a mere attempt to sell a book authored by her. The headline, "Welcome a new Shaklee Woman, Heloise," does not refer to Heloise's book; it refers to her person. This reference to her as a "Shaklee Woman," taken in the context of a magazine whose theme is to honor the "Shaklee Woman," described elsewhere in the magazine as an important part of the Shaklee organization, is highly objectionable. Elsewhere in the advertisement readers are told that Heloise "will soon be helping you to open doors and make more sales with Shaklee." The crux of the advertisement is that Heloise has joined with Shaklee by making her book available with "special Shaklee products tips" printed in the text.
Heloise contends that the same acts which constitute a misappropriation of her name constitute unfair competition and trademark and tradename infringement. Trademark and tradename infringement are specific forms of the common law tort of unfair competition. Unfair competition usually involves situations where a defendant has passed off his goods or services as those of the plaintiff. Volkswagenwerk Aktiengesellschaft v. Rickard, 492 F.2d 474 (5th Cir. 1974). But the underlying principle of the tort is that one should not be permitted to use another's good will with the public to gain a competitive advantage in the market. See, Boston Pro Hockey Ass'n. v. Dallas Cap & Emblem Mfg. Co., 510 F.2d 1004 (5th Cir. 1975); Kentucky Fried Chicken v. Diversified Packing, 549 F.2d 368 (5th Cir. 1977). Thus, the traditional formulation of the tort, i. e. passing one's goods off as those of another, has not defined its parameters. The courts have said that any practice which may mislead customers into believing that the product of the defendant is endorsed by or somehow connected to the plaintiff falls within the parameters of the tort. Kentucky Fried Chicken v. Diversified Packing, supra; Allstate Ins. Co. v. Allstate Inc. Co., 307 F. Supp. 1161 (N.D.Tex.1969). In accordance with the above reasoning, the courts have held that competition between the plaintiff and defendant is unnecessary to show unfair competition. Allstate Ins. Co. v. Allstate Inc. Co., supra.
Shaklee has contended that, under Texas law, an intent to deceive the public is an element of the tort of unfair competition citing Prudential Ins. Co. v. Prudential Title Co., 189 U.S.P.Q. 617, 620 (S.D.Tex.1976). In Prudential the court stated that it "appeared" that intent was required by Texas *542 law. Although the basis for that conclusion is unclear, it appears that the court found this "appearance" from the statement of the law of unfair competition in Douglas v. Taylor, 497 S.W.2d 308 (Tex.Civ.App.1973). The court said that unfair competition may result from the use of a name where that use is "reasonably calculated to deceive." The court took that language from Harrelson v. Wright, 339 S.W.2d 712 (Tex.Civ.App. 1960) which was quoting from 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition 92 at 325-329. The crux of all these discussions and the point of the language used was that a plaintiff need not prove actual confusion or deception on the part of buyers but need only show that the practice objected to was reasonably calculated to deceive. Elsewhere in the paragraph the test is stated as requiring that deception be the natural and probable result of the practice. It is clear from a reading of the entire 92 that the author did not intend to infer that intent was an element of the tort. Neither did the Texas courts in Harrelson and Douglas use that language in such a manner. Rather we think that the decisions in Volkswagenwerk Aktiengesellschaft v. Rickard, supra, and Oliver Gintel, Inc. v. Koslow's, Inc., 355 F. Supp. 236, 239 (N.D.Tex.1973), correctly state the Texas law on this subject; intent is not an element of the tort of unfair competition in Texas.
Shaklee is a leading wellness company founded by Dr. Shaklee, who invented the first multivitamin in the US more than 100 years ago. As a pioneer in sustainability, Shaklee was the first company in the world to fully offset its carbon emissions and have a net zero impact on our planet. Shaklee products are backed by over 110 published clinical studies proving safety and efficacy and are marketed through more than 2 million ambassadors in North America and Asia. With a complete wellness portfolio, Shaklee is committed to providing consumers with the products and support they need to live their healthiest lives. For more information, visit www.shaklee.com, follow @shakleehq on Instagram, or like us on Facebook.
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