Zachary Miller, a well-known professional skateboarder, was paid by Easy Day Studios Pty. Ltd. and Reverb Communications, Inc. to help develop a video game, which was ultimately called Skater XL. Miller agreed to model various clothing outfits for the game, but only with the understanding that the outfits he wore would be applied to a generic, unidentifiable character. But when the game came out, Miller’s reaction was that the character was neither generic nor unidentifiable, but an “exact copy” of him. As a result, Miller sued Easy Day and Reverb in the Southern District of California, alleging false endorsement and false advertising under the federal Lanham Act. The district court, however, dashed the skateboarder’s hopes of recovery when it granted the defendants’ motion to dismiss—though with leave to amend.
