A high-profile lactation consultant is accusing a California blogger of infringing her intellectual property and publicity rights in a federal lawsuit filed in Chicago, alleging the blogger wronged her in response to the lactation expert’s request to no longer associate with the blogger following the blogger’s decision to associate with infant feeding products the lactation expert did not support. 

Nancy Mohrbacher, and her Illinois-based Nancy Mohrbacher Solutions, has asked the court to award at least $75,000 in a complaint she filed June 16, accusing blogger Sunny Gault, of New Mommy Media, of using Mohrbacher’s identity without permission to promote her own “financial interests and commercial activities in the context of issues pertaining to parenting and early childhood development.” 

The eight-count lawsuit includes claims for violation of the right to publicity, invasion of privacy by appropriation, invasion of privacy by false light, false association or endorsement, deceptive business practices, unfair competition and copyright infringement. 

Mohrbacher says she’s been a professional lactation consultant and educator for more than 30 years. She was first made a La Leche League International leader in 1982, earned International Board of Lactation Consultant Examiners certification in 1991, and in 2008 was honored as a “Fellow” of the International Lactation Consultant Association. 

She has an eponymous website, a breast-feeding reference smartphone app and actively promotes her business on YouTube, Facebook, Twitter and Pinterest. She does not support or endorse infant formula or manufacturers of related products, but does earn “a significant portion” of her income from endorsing products that meet certain standards. 

New Mommy Media contacted Mohrbacher in 2013, she said, to be featured as an expert in a series of podcasts. Before accepting the deal, Mohrbacher checked to make sure the site adhered, as does she, to the guidelines of the World Health Organization’s International Code of Marketing of Breast-Milk Substitutes, or the WHO Code. At the time, she alleges, New Mommy Media did comply with the WHO Code, and site staff assured her that would always be true. 

Mohrbacher recorded the interviews in August 2013 and in January and April 2014. In December 2015, she learned Gault “unilaterally and arbitrarily” decided to change the site’s WHO Code policy. Once Mohrbacher learned New Mommy Media would be associating with WHO Code violators, she sought to break ties. She submitted a written revocation of their earlier oral agreement on Jan. 5, 2016. 

Gault, Mohrbacher said, refused, but instead sent her instructions for completing a “Takedown” form, including “Gault’s arbitrary dictates, demands and thinly-veiled threats that any expert seeking to exit” the site would have to endure. If Gault agreed to remove a podcast, she would replace it with a message indicating “the expert’s forced ‘explanation’ and rationale” for the removal. 

Being subject to that Takedown policy — a condition to which she never agreed — would “further strip Mohrbacher of control over her persona, resulting in self-inflicted reputational harm” she is legally allowed to avoid, she argued. 

In addition to at least $75,000 in damages, Mohrbacher seeks punitive damages, legal fees and “a permanent injunction requiring Gault to refrain from any use of (Mohrbacher’s) registered works without prior authorization.” 

Representing Mohrbacher is Mark H. Barinholtz, of Chicago.

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