April 30, 2026, 20:40 GMT | Comment
New federal litigation in Tennessee could test the ability of US intellectual property law to keep pace with geotargeted advertising, cross-platform content flows and globalized app ecosystems. “The conduct is old,”
McGuireWoods’ Abe Pafford told MLex, “but the way of doing it, and the impact, is new.”
A college freshman this week sued the owners and operators of Meete, a social media and messaging app with 17 million global users, after a 10-second segment of a video she posted to
TikTok was extracted and embedded into a sexually charged advertisement without her consent.
British Virgin Islands-based defendant Quantum Communications and two China-based affiliates placed the ad on other platforms like Snap.
But they are alleged to have gone even further, utilizing technology to display the ad on the devices of nearby users with apparent success: it was viewed by at least one resident in plaintiff Kaelyn Lunglhofer’s dormitory at the University of Tennessee.
Her complaint could be the first of its kind.
“We're not aware of another case out there that has this exact type of facts or this exact sequence of events,” McGuireWoods partner Abe Pafford told MLex. “The geotargeting piece is what makes it particularly egregious, and particularly dangerous.”
The lawsuit, filed Tuesday in the US
Eastern District of Tennessee, centers on false endorsement. But Lunglhofer’s claims could push beyond the familiar celebrity-endorsement paradigm, raising questions about the role the Lanham Act and state right of publicity laws can play when identity, itself, is misappropriated and monetized as ad inventory.
“The conduct is old, but the way of doing it, and the impact, is new,” Pafford said. “They stole something, used it in a deceptive way, didn’t care who they hurt, and did it for money.”
— Niche followings, modest value —
The new era of deepfakes and micro-influencer culture has allegations under Section 43(a)(1)(A) of the Lanham Act on the rise. But courts have historically struggled to reach consensus on whether recognizability, alone, is enough — and whether false endorsement plaintiffs must also meet a threshold level of commercial success.
In 2021’s Electra v. 59 Murray Enterprises, the
US Court of Appeals for the Second Circuit upheld dismissal of false endorsement claims by a group of models in view of their failure to demonstrate their identities were sufficiently distinctive to cause consumer confusion. The ruling would go on to be cited by the same court two years later, in Souza v. Exotic Island Enterprises.
By contrast, the Ninth Circuit — in 2001’s Downing v.
Abercrombie & Fitch — allowed non-celebrities to proceed with Section 43(a)(1)(A) claims where their identities functioned as a source identifier.
That inquiry is complicated by social media, where users like Lunglhofer may lack broad public recognition but still possess a highly engaged, niche following and modest, yet measurable, sponsorship value.
She bolsters her position by pointing to “thousands of dollars in free merchandise from fashion and beauty brands” received in connection with her TikTok account. Moreover, her complaint states she regularly fields requests from “for-profit companies that want to explore collaborating with her to market their products and services.”
According to Lunglhofer, her “identity and persona function as a protectable indicium of source, sponsorship, and approval” based on her social media presence and burgeoning commercial opportunities.
The facts as alleged — including that at least one male resident of her dorm mistakenly believed the plaintiff to be a willing participant in Meete’s paid ad campaign — underscore how easily confusion can arise in platform-native ad formats that mimic organic content, especially when an unauthorized use is locally amplified.
“That’s the purpose of the targeting — to entice people into the ad with a sense that people around them are engaged in this,” Pafford noted. “It heightens the risk of confusion and the risk of reputational harm.”
— Zone of interests —
False endorsement is not Lunglhofer’s only cause of action under the Lanham Act.
The defendants also stand accused of violating Section 43(a)(1)(B) in their presentation of the plaintiff as an example of “women around you who are looking for some fun,” with whom interested users “can video chat.” Such representations are false “or, at minimum, were misleading by necessary implication, and had a tendency to deceive a substantial segment of the intended audience,” the complaint states.
Lunglhofer asserts injury within the Lanham Act’s zone of interests based on proximate harm to her reputation and lost endorsement opportunities.
Such theories reflect a continued expansion of Lanham Act standing, particularly where a plaintiff’s persona is used to drive sales, in the wake of the
US Supreme Court’s rejection in 2014 of the “direct competitor” and “reasonable interest” tests in Lexmark v. Static Control.
That the defendants are located abroad could also raise questions about the territorial reach of the Lanham Act following the justices' 2023 holding in Abitron Austria v. Hetronic International that the statute applies only to a domestic “use in commerce.”
But Pafford was quick to note that Lunglhofer’s allegations are not based on purely foreign conduct.
Moreover, he continued, the defendants “in a very proactive, conscious way have availed themselves of the US market,” including by securing and paying to maintain trademark registrations at the
US Patent and Trademark Office, distributing their apps via
Apple and
Google and directing advertising at US consumers.
“You can’t take advantage of the US market and its legal protections while ignoring the rules that come with it,” he added.
— Safety issue —
Lunglhofer’s reliance on the Ensuring Likeness, Voice, and Image Security (ELVIS) Act, meanwhile, underscores the gap-filling purpose of state right of publicity laws. The 2024 statute, codified at Tenn. Code Ann. § 47-25-1101 et seq., amended Tennessee’s existing right of publicity law — which the defendants are also accused of violating — to explicitly include “voice” as a protected property right.
There is significant overlap with federal law: the Lanham Act and ELVIS Act both target unauthorized commercial exploitation of identity and offer similar remedies for prevailing parties.
But because the ELVIS Act, and other state laws like it, do not require plaintiffs to establish confusion, they represent an alternative path to relief in the event a Lanham Act claim falters.
Lunglhofer’s complaint makes a case that the defendants’ actions had the potential to cost her more than followers or potential collaborators.
“It’s dangerous,” Pafford said. “You’re taking a teenager’s image, putting it into this kind of ad without her knowledge, and then delivering it to men who are physically near her — people she may interact with, without knowing what they’ve seen.”
“You can imagine situations where that becomes more than reputational harm,” he added. “It becomes a real safety issue.”
— Implicit bargain —
Lunglhofer seeks an injunction, removal of the accused ad along with any derivative uses, corrective advertising, disgorgement under Section 43(a)(1)(A) and actual and compensatory damages of at least $750,000. That sum could be trebled or enhanced if a judge agrees the defendants’ conduct rises to the level of exceptional.
As the court confronts that question and others raised by Lunglhofer, cases like it could help set the boundaries of identity-based claims in the digital advertising ecosystem.
“Social media has democratized the ability to create content and even blend art with commerce,” Pafford mused. “For some people it’s a way to earn a living, for others it’s a hobby that has some financial benefits from time to time.”
But there is “an implicit bargain when you put content out there publicly,” he continued.
“It’s available for people to consume but it’s not there to be taken by companies and then flipped for their own purposes into an advertisement that falsely, inaccurately implies someone is endorsing their product or their service.”
Please email editors@mlex.com to contact the editorial staff regarding this story, or to submit the names of lawyers and advisers.
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Topics:
Trademarks, False Advertising