SAGAN v. APPLE COMPUTER, INC.
874 F.Supp. 1072 (1994)
United States District Court, C.D. California.
June 27, 1994.
Plaintiff's second claim is under section 3344 of the California Civil Code, which states:
Any person who knowingly uses another's name ... in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, 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.
Id. To plead a claim under § 3344, there must be an allegation of a "direct" connection between the use and the commercial purpose. Brewer v. Hustler Magazine, Inc.,749 F.2d 527 (9th Cir.1984) (finding that California Civil Code § 3344 is limited to appropriation for purposes of advertising or soliciting purchases); Eastwood v. Superior Court,149 Cal.App.3d 409, 417-418, 198 Cal.Rptr. 342 (1983) (finding that the allegation that The National Enquirer used Clint Eastwood's name for the purpose of promoting sales satisfied requirement). Finally, Plaintiff's fourth claim for violation of his common law right of publicity requires, among other things, that plaintiff allege "the appropriation of plaintiff's name or likeness to defendant's advantage, commercial or otherwise." White v. Samsung Electronics America, Inc.,971 F.2d 1395, 1397 (9th Cir. 1992) (citing Eastwood v. Superior Court,149 Cal.App.3d 409, 417, 198 Cal.Rptr. 342).
Defendant's argues that Paragraphs 11, 12 and 14 of the complaint introduce ambiguity into the complaint such that Defendant cannot reasonably be required to frame a responsive pleading with regard to Plaintiff's first four claims. The relevant portions of the complaint state:
11. On or about December 6 and 7, 1993, Apple advised Sagan's attorneys that Apple was using Sagan's name as a "code name" for an Apple PC and that Apple would cease using Sagan's name.
12. In or about January 1994, Apple changed the "code name" of the Apple PC from "Carl Sagan" to "Butt-Head Astronomer". This change was published by Apple, and it appeared in numerous newspaper articles and in other media.