Jonathan Bilyk Feb. 6, 2016, 3:06pm

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 “obvious joke” and chiding the plaintiff for lacking a sense of humor, kicked to the curb a lawsuit alleging the ad improperly used the hacky sacker’s record and implied he had relied on the energy drink to achieve his record.

On Feb. 1, U.S. District Judge John Tharp Jr. dismissed the lawsuit brought by Johannes T. “Ted” Martin, of Des Plaines, against Living Essentials LLC, maker of 5 Hour Energy, over a “farcical” commercial aired by the company produced and aired by the company to promote its popular energy drink.

The commercial featured a male Caucasian actor who claimed, within the preceding five hours, he had “disproved the theory of relativity; swam the English Channel and back; found Bigfoot; and mastered origami while beating ‘the record of Hacky Sack,’ all because he took a (5 Hour Energy) shot.” During the commercial, the actor is seen kicking two hacky sacks, or footbags, while “using his hands to create an elaborate origami figure.” The commercial also included a disclaimer at the bottom of the screen stating the commercial’s content and claims were “for comedic purposes only,” did not represent “actual results” and that the energy drink has not been “proven to improve physical performance, dexterity or endurance.”

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 “a false representation of fact” and presented the actor in such a way he “assumed his (Martin’s) identity as a hacky sack world record holder.”

Formally, Tharp dismissed the complaint because Martin waited too long under the Illinois publicity rights law to bring his complaint.

However, Tharp said, even if the complaint wasn’t time-barred, he still would have dismissed the complaint for a host of other reasons.

To begin, Tharp said the commercial doesn’t 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 – 69, 812 total kicks in 7 hours, 38 minutes and 22 seconds, a record he set in November 1995 – and open singles consecutive – 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.

But legal arguments over how much the actor and his purported accomplishments may resemble those of Martin’s “misses the more fundamental point,” Tharp said.

“The commercial is a joke, a comedic farce,” the judge wrote.

“If you didn’t 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,” Tharp said. “Martin 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.”

In addressing the false advertising claims, Tharp agreed the ad makes false claims as “the claim that a (5 Hour Energy) consumer broke any hacky sack record (while mastering origami, no less) is false.”

But he said the false claims present little danger of fooling even the least sophisticated of viewers.

“Telling consumers that they might cross one more item off their to-do list in the afternoon if they drink (5 Hour Energy) isn’t necessarily a compelling or memorable sales pitch,” the judge said. “Consumers 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.”

Tharp dismissed Martin’s complaint with prejudice, meaning he cannot amend and refile his litigation against Living Essentials over the commercial.

“Mr. Martin (and the rest of us for that matter) would do well to remember: defectum humoris non curat lex,” Tharp wrote, delivering a Latin phrase translated as “The law does not reward humorlessness.”

Martin represented himself in the action.

Living Essentials was defended by the firm of Howard & Howard, of Chicago.

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