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
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,
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
Representing Mohrbacher is Mark H. Barinholtz, of Chicago.