Jury: Coke, Monster misused juice magnate's publicity rights

Thigpen

After a 10-week trial featuring more than 40 witnesses, a San Diego jury has ruled in favor of heirs of juice entrepreneur Hubert Hansen against Coca-Cola Co. and Monster Beverage Co., finding the companies had misused Hansen's publicity rights on their "Hubert's Lemonade" brand of drinks. They awarded plaintiffs $4.4 million in damages.

The verdict comes three years after a California appellate court tossed the $9.5 million jury verdict previously reached in the case, finding San Diego County Superior Court Judge Timothy Taylor had improperly made credibility determinations that should have been left to the jury. The 2020 trial on damages followed a 2019 bench ruling that Hansen's heirs controlled the rights to his name and image. Hansen died in 1951. Hubert Hansen Intellectual Property Trust et al. v. The Coca-Cola Company et al., 37-2016-00021046-CU-MC-CTL (S.D. County Super. Ct., filed June 22, 2016); Hansen v. Coca-Cola Co., D077588 (Cal. App. 4th Dist. June 17, 2021) (unpublished).

Plaintiffs had argued that Monster used Hansen's name and likeness without consent, creating a valuable brand called "Hubert's Lemonade" in 2011 that was directly connected to their commercial purposes. That brand was subsequently sold to Coca-Cola in 2015. The plaintiffs sought damages for actual losses, profits attributable to the defendants' use, and punitive damages, arguing that the defendants' actions were intentionally wrongful.

Among several arguments leveled by the defense, a key assertion was that they had rightfully acquired the right to use Hansen's name and likeness through a series of acquisitions in the 1990s. This included the acquisition of the assets of Hansen Foods and the intellectual property of Hansen's Juices -- companies started by Hansen's heirs -- which the defendants claimed included the right of publicity as an intangible intellectual property right.

They pointed to brochures produced by Hansen's Juices and Hansen Foods containing Hansen's name, image and history. These were acquired by Hansen Beverage Company, the predecessor to Monster Energy Company, in the early 1990s from Hansen's Juices and Hansen Foods, along with other assets and intellectual property following the latter companies' bankruptcy. Defendants argued that these materials gave subsequent owners the right to use Hansen's name.

The jury did not agree, plaintiffs' attorney Jordanna G. Thigpen said. They ruled by a margin of 12-0 on the question of consent.

"We used various methods of demonstrating that the rights simply did not pass in any of the ways defendants argued, including physical evidence, demonstratives, expert testimony on custom and practice, and cross-examination, but at the end of the day, it came down to the principle that you cannot sell what you don't own: None of the companies ever acquired the right to consent to use of Hubert Hansen's right of publicity (which descended by operation of law to the family at the moment of Hubert Hansen's death), and therefore defendants never acquired that right either," Thigpen, who is with Thigpen Legal PC, said via email.

She added, "Nor did they acquire the right to use it, merely because the name was written in three brochures and used incidentally in a single radio advertisement more than 30 years prior."

Attorneys for Coca-Cola and Monster had not responded to a request for comment at the time of publication. Attempts to contact Coca-Cola and Monster's respective media departments were unsuccessful.

The jury also ruled in plaintiffs' favor on questions of whether the name Hubert Hansen had no commercial value at the time of his death, whether the lawsuit was time-barred and whether First Amendment protections applied.

Hamideh

Bassil A. Hamideh, who also represented the plaintiffs, said that trial management had been complex, given the sheer amount of evidence and witnesses. Hamideh is with The Hamideh Firm PC.

"We told our clients' story as clearly as possible: There was simply no consent to use Hubert Hansen's right of publicity. Defendants made the case very complex in raising issues related to bankruptcy, First Amendment and dozens of affirmative defenses," Hamideh wrote in an email.

"Even before trial started, there were over 200 separate witness transcripts (between depositions and the two prior trials) that we had to know and review. There were dozens of witnesses and thousands of exhibits. Defendants had 11 separate expert witnesses since they scrubbed their first set after the appeal. Extensive preparation and total commitment was the only way to get a victory," he added.

Jordan A. Gonzales, also a member of the trial team, similarly described the verdict as a "victory over defendant's difficult litigation tactics," in an email. Gonzales is currently with Harder Stonerock LLP.

The first jury trial was overseen by San Diego County Judge Timothy Taylor and the second trial by Judge Gregory W. Pollack.

The $4.4 million in damages is roughly half that achieved in 2020. Complicating plaintiffs' recovery efforts was Pollack's strict construal of California's right of publicity legislation - in particular Civil Code Section 3344.1(n) -- to restrict recovery to losses occurring directly in the state. Plaintiffs had petitioned the Court of Appeal for a writ of mandate on the decision, to no avail.

"Following entry of judgment, the next steps will be to make a motion for attorneys' fees and request costs, for the work that has been done to prosecute the case for the past 8.5 years. No decisions have been made yet for appeal, on our side at least," Thigpen said.

Despite disagreement on restriction of jurisdiction, Thigpen was effusive in her praise of the judges who have overseen the case over the past eight years.

"We had two incredible trial judges, Judge Taylor and Judge Pollack, who have made us better trial lawyers with their incredible efforts managing these two trials," she said.

"To me, the right of publicity is a human right, the right to be free of commercial misappropriation. We are grateful to the two juries of San Diego County who agreed that defendants could not just take a human being's identity without consent and use it to sell their products," Thigpen said.

"This was an exceptionally difficult case with multiple issues of first impression under California law. There were an army of lawyers representing defendants. We are happy we were able to achieve a victory on behalf of our clients who never backed down against insurmountable odds. We look forward to final resolution," Hamideh wrote.