03/18/2010 05:12 am ET | Updated May 25, 2011

Shawne Merriman v. Tila Tequila: The Best Defense Is a Good Offense?

Last week, San Diego Charger Shawne Merriman filed a lawsuit against reality television personality Tila Tequila. The filing was the latest move in an ongoing battle between the two which started in September of this year. The battle began with Tequila accusing Merriman of choking her after an alleged dispute between the two at Merriman's home. Although Merriman was arrested at the time of the incident, the San Diego District Attorney declined to press charges. Tequila later sued Merriman in the San Diego Superior Court for a variety of claims arising out of the incident, including battery, intentional infliction of emotional distress and domestic violence. Her complaint not only described Merriman's alleged acts of violence, but also provided colorful background regarding the dispute, contending that Merriman became angry when Tequila confronted him about his "personal drug use (steroids, ectasy, pot), his violent behavior, [and] hearing that [Merriman] had slept with a minor . . ."

Tequila's comment on the incident did not end with the filing of her complaint. She also went on somewhat of a publicity campaign against Merriman, allegedly posting negative comments about him on her website and making negative comments to the press. While Merriman will have to defend against Tequila's allegations in the San Diego Superior Court, he apparently decided that doing so was not sufficient to remedy the harm he has allegedly suffered. Accordingly, staying true to the old sports adage that the best defense is a good offense, last Thursday Merriman want on the offensive. He filed a federal lawsuit against Tequila in which he alleges that Tequila has gone on a smear campaign, making false, unfounded and outrageous statements about Merriman in a plot to interfere with his business dealings. Merriman also claims that Tequila has infringed his intellectual property rights by, among other things, posting copyrighted pictures of Merriman on her website without Merriman's authorization and infringing his "Lights Out" trademark.

While Merriman's complaint alleges a number of claims, at first glance, it appears to be much ado about nothing. Based on the complaint, it appears that Tequila has in fact posted, without authorization, copyrighted pictures of Merriman on her website. According to the complaint, the copyrighted pictures accompanied a blog entry on the site which announced Tequila's lawsuit against Merriman, and included the caption "SHAWNE SCARYMAN... I WILL SEE YOU IN COURT BABY SWEETIE POO BEAR HONEY BUN! LOL." But will Merriman be able to establish damages as a result of the unauthorized use of the photographs? Merriman claims that Tequila used the pictures to drive consumers to her websites to purchase her goods and services. But it is hard to imagine a theory under which her posting of a random picture of Merriman under the quoted caption and an article about her lawsuit, with no mention of her products or services near the picture, led to more consumers buying her products?

Merriman's trademark infringement claim is similar. Merriman alleges that Tequila has used his famous trademark "Lights Out" again for the purpose of attracting consumers to her websites, however, he does not provide any specifics as to how she used the trademark. I have seen articles quoting Tequila in which she has mentioned that "Lights Out" is Merriman's nickname. Is that what Merriman is referring to?

Finally, the most remarkable thing about Merriman's complaint may be what it doesn't say. In the complaint, Merriman alleges that Tequila has repeatedly made "false, unfounded and outrageous statements" about Merriman on her website, to the press and/or to third parties, including false statements that "Merriman choked and attacked" her, that Merriman "sleeps with minors and forces them to take drugs," that "illegal drugs are manufactured in Plaintiff Merriman's home," and that "Merriman took the drug ectasy and 'smoked pot' on the night/morning of September 5-6." However, despite such accusations, Merriman's complaint does not include claims against Tequila for libel or slander.

Under California Civil Code § 45, libel is defined as "a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." Slander is basically the same as libel, but based on oral not written statements. Given Merriman's allegation that Tequila's statements are false and given his allegation that, by making the statements, she has injured him in his occupation, a claim for libel and slander would seem an obvious choice, unless of course, Merriman believed that he could not prevail on such a claim. To prove libel or slander, a plaintiff must prove that the alleged statements which form the basis for the claim were false. Was Merriman concerned that he could not prove that? It does not appear that way given his complaint is full of allegations that the statements were untrue. So why not sue for libel and slander?

One possible explanation could be a concern that Tequila's statements were privileged. Under California law, statements made in the course of judicial proceedings are privileged and thus cannot subject the speaker to liability. But, according to Merriman's complaint, the statements were not simply made as part of the judicial proceeding (i.e., in papers filed with the Court or at related proceedings such as depositions or court hearings). To the contrary, the statements were allegedly made by Tequila to the press and other third parties and posted on Tequila's website.

In the end, only Merriman and his attorneys know why Merriman chose to sue Tequila and whey he also chose not to assert claims for libel and slander. However, if the purpose of the complaint was to go on the offensive as a means of deflecting any negative publicity that Merriman may be receiving from Tequila's original charges, was Merriman successful? Not only do his claims appear somewhat weak, but news of his filing of the complaint has undoubtedly led to further reporting of the original charges and accusations made by Tequila. Merriman is unquestionably a very talented football player, but it remains to be seen if the successful football strategy he has employed will translate to a successful legal (or public relations) strategy.

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