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"<body><p>A world record-holding hacky sacker has lost his bid to extract damages from the makers of 5 Hour Energy over an advertisement for the energy drink, after a federal judge, calling the ad an \u201Cobvious joke\u201D and chiding the plaintiff for lacking a sense of humor, kicked to the curb a lawsuit alleging the ad improperly used the hacky sacker\u2019s record and implied he had relied on the energy drink to achieve his record.\r</p><p>\r</p><p>On Feb. 1, U.S. District Judge John Tharp Jr. dismissed the lawsuit brought by Johannes T. \u201CTed\u201D Martin, of Des Plaines, against Living Essentials LLC, maker of 5 Hour Energy, over a \u201Cfarcical\u201D commercial aired by the company produced and aired by the company to promote its popular energy drink.\r</p><p>\r</p><p>The commercial featured a male Caucasian actor who claimed, within the preceding five hours, he had \u201Cdisproved the theory of relativity; swam the English Channel and back; found Bigfoot; and mastered origami while beating \u2018the record of Hacky Sack,\u2019 all because he took a (5 Hour Energy) shot.\u201D During the commercial, the actor is seen kicking two hacky sacks, or footbags, while \u201Cusing his hands to create an elaborate origami figure.\u201D The commercial also included a disclaimer at the bottom of the screen stating the commercial\u2019s content and claims were \u201Cfor comedic purposes only,\u201D did not represent \u201Cactual results\u201D and that the energy drink has not been \u201Cproven to improve physical performance, dexterity or endurance.\u201D\r</p><p>\r</p><p>In his complaint, Martin claimed the ad violated the Illinois Right to Publicity Act and the federal Lanham Act, which governs false advertising claims, as the ad presented \u201Ca false representation of fact\u201D and presented the actor in such a way he \u201Cassumed his (Martin\u2019s) identity as a hacky sack world record holder.\u201D\r</p><p>\r</p><p>Formally, Tharp dismissed the complaint because Martin waited too long under the Illinois publicity rights law to bring his complaint.\r</p><p>\r</p><p>However, Tharp said, even if the complaint wasn\u2019t time-barred, he still would have dismissed the complaint for a host of other reasons.\r</p><p>\r</p><p>To begin, Tharp said the commercial doesn\u2019t specifically name Martin, or suggest the actor is Martin, other than to reference a world record for hacky sack. While Martin holds the world records for consecutive kicks \u2013 69, 812 total kicks in 7 hours, 38 minutes and 22 seconds, a record he set in November 1995 \u2013 and open singles consecutive \u2013 63,326 total kicks in 8 hours, 50 minutes and 42 seconds, set in June 1997 - the judge noted there are other hacky sack records.\r</p><p>\r</p><p>\r</p><p>But legal arguments over how much the actor and his purported accomplishments may resemble those of Martin\u2019s \u201Cmisses the more fundamental point,\u201D Tharp said.\r</p><p>\r</p><p>\u201CThe commercial is a joke, a comedic farce,\u201D the judge wrote. \r</p><p>\r</p><p>\u201CIf you didn\u2019t get the joke, and wanted to find out who this remarkable person is, you would also have to find out who had disproved relativity, and swum the English Channel, and found Bigfoot, all in the same afternoon,\u201D Tharp said. \u201CMartin neither claims to have done these other things nor explains why anyone would believe that, in addition to unrivaled skill at keeping a footbag aloft, he possesses genius surpassing that of Einstein, twice the endurance of Diana Nyad, and hunting skills so refined that he is able to locate even mythical creatures.\u201D\r</p><p>\r</p><p>In addressing the false advertising claims, Tharp agreed the ad makes false claims as \u201Cthe claim that a (5 Hour Energy) consumer broke any hacky sack record (while mastering origami, no less) is false.\u201D\r</p><p>\r</p><p>But he said the false claims present little danger of fooling even the least sophisticated of viewers. \r</p><p>\r</p><p>\u201CTelling consumers that they might cross one more item off their to-do list in the afternoon if they drink (5 Hour Energy) isn\u2019t necessarily a compelling or memorable sales pitch,\u201D the judge said. \u201CConsumers are much more likely to remember the claim that (5 Hour Energy) will enhance productivity if it is delivered in a more colorful and entertaining message.\u201D\r</p><p>\r</p><p>Tharp dismissed Martin\u2019s complaint with prejudice, meaning he cannot amend and refile his litigation against Living Essentials over the commercial. \r</p><p>\r</p><p>\u201CMr. Martin (and the rest of us for that matter) would do well to remember: defectum humoris non curat lex,\u201D Tharp wrote, delivering a Latin phrase translated as \u201CThe law does not reward humorlessness.\u201D\r</p><p>\r</p><p>Martin represented himself in the action.\r</p><p>\r</p><p>Living Essentials was defended by the firm of Howard & Howard, of Chicago.</p></body>"^^<http://www.w3.org/2001/XMLSchema#string>
<http://cookcountyrecord.com/stories/510662051-humorless-lawsuit-over-obvious-joke-ad-for-5-hour-energy-kicked-out-of-court>