Ratermann v. Pierre Fabre USA, Inc.

Background

Patty Ratermann, a model, alleged that she licensed QuickFrame, Inc. to use her likeness on Instagram in 2020. She later alleged that her likeness was used to promote Pierre Fabre USA, Inc.’s Avène products on other websites and in at least one Walgreens store. Her lawsuit asserted claims under New York Civil Rights Law Sections 50 and 51, the federal Lanham Act, New York unfair-competition law, breach of contract, and fraud.

In an earlier ruling, the court dismissed all claims except Ratermann’s New York Civil Rights Law claim against Pierre Fabre, excluding her request for exemplary damages, and her breach-of-contract claim against QuickFrame. The court allowed Ratermann to amend only her New York Civil Rights Law claim against Walgreens and QuickFrame and her unfair-competition claim against Pierre Fabre. Ratermann then filed a Fifth Amended Complaint that also added California Civil Code Section 3344 claims against Walgreens and Pierre Fabre and sought new categories of damages against Pierre Fabre.

Motions and Standards

Pierre Fabre and Walgreens jointly moved to dismiss, and QuickFrame separately moved to dismiss, under Rule 12(b)(6). That rule tests whether a complaint alleges enough facts to make a claim legally plausible. At this stage, the court generally accepts the complaint’s factual allegations as true and draws reasonable inferences for the plaintiff, but it does not accept bare legal conclusions.

The court also stated that it would not consider a declaration and later letter submitted by Ratermann because they supplied material outside the complaint and the materials permitted for consideration on a motion to dismiss.

Scope of Leave to Amend

The court dismissed Ratermann’s California Civil Code Section 3344 claims against Walgreens and Pierre Fabre because the earlier order had not given her permission to add claims under California law. The court also dismissed her request for new kinds of damages against Pierre Fabre because the earlier order had not authorized her to broaden the damages sought for the New York Civil Rights Law claim. The court treated these claims and damages requests as exceeding the limited permission to amend.

New York Civil Rights Law Claims

QuickFrame and Pierre Fabre argued that Ratermann’s Sections 50 and 51 claims were untimely. The court rejected that argument because dismissal based on a time limit is proper at this stage only when the complaint itself clearly shows that the claim is late. Ratermann alleged that at least one infringing use began within one year before she filed suit. The defendants’ contrary argument relied on archived webpages outside the complaint.

QuickFrame also argued that Ratermann had not plausibly alleged that QuickFrame used her likeness for advertising beyond the license. The court concluded that, although Ratermann did not plausibly allege that QuickFrame itself used her image for advertising, she did allege that QuickFrame sold, transferred, distributed, and traded her pictures to Pierre Fabre for uses outside the license. The court held that this was enough at the pleading stage to state a claim under Sections 50 and 51. Those claims against QuickFrame and Pierre Fabre therefore survived, except for the specified request for “statutory damages and penalties, including punitive damages.”

Unfair Competition Claim

The court dismissed Ratermann’s New York common-law unfair-competition claim against Pierre Fabre. It explained that this claim requires the elements of a Lanham Act unfair-competition claim plus bad faith. In the earlier ruling, the court had dismissed Ratermann’s Lanham Act claim against Pierre Fabre after finding that it was not false or misleading to say that Ratermann endorsed Pierre Fabre’s products because she had agreed to endorse those products on Instagram. The court concluded that the unfair-competition claim also failed, particularly because Ratermann’s conclusory allegation that Pierre Fabre’s conduct was likely to cause confusion did not provide sufficient supporting facts.

Disposition

Judge Jesse M. Furman’s order granted in part and denied in part the defendants’ motions to dismiss. The California Civil Code Section 3344 claims and the unfair-competition claim against Pierre Fabre were dismissed. Ratermann’s Sections 50 and 51 claims against QuickFrame and Pierre Fabre survived, subject to the stated limitation concerning damages. Her breach-of-contract claim against QuickFrame also remained live. Because all claims against Walgreens had been dismissed, the Clerk was directed to terminate Walgreens as a party. QuickFrame and Pierre Fabre were ordered to answer the remaining claims within two weeks unless the court ordered otherwise.