Vinci v. American Can Co.

I respectfully dissent. I believe that a genuine issue of material fact remains to be litigated.

Summary judgment is appropriate only when it appears from the evidentiary materials that reasonable minds can come to but one conclusion, and that conclusion is adverse to the non-movant.Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 4 O.O.3d 466, 364 N.E.2d 267; Stegawski v. Cleveland Anesthesia Group,Inc. (1987), 37 Ohio App. 3d 78, 523 N.E.2d 902. Where competing reasonable inferences may be drawn from undisputed evidence, resolution of an issue should be left for determination by a factfinder. Duke v. Sanymetal Products Co. (1972), 31 Ohio App. 2d 78, 60 O.O.2d 171, 286 N.E.2d 324.

The companies maintain that their purpose in using the athletes' names on the cups was informational rather than commercial. The athletes argue that the companies' affidavit demonstrates that the Dixie Cup promotion was intended to put Dixie Cups and Minute Maid products before the public in a favorable light. They claim that the use of their names and achievements enhance the promotional value of the cups.

Evidentiary material attached to the defendants' summary judgment motion describes the purpose of the campaign, as follows:

"The purpose of this promotion is to conduct a revenue generating event which will benefit the United States Olympic Committee. An event which reinforces the Minute Maid overall three year commitment to their `partnership.' A `partnership' which by choice will have presence [sic]. A `partnership' with the United States Olympic Team which is a natural association. Athletes directly benefit from the consumption of fruit based juices and drinks."

I believe that a factfinder could reasonably infer from the foregoing that the companies' purpose in using the athletes' names, identities and achievements was to put their products before the public in a favorable light and enhance the promotional value of the cups. Therefore, I would sustain the assigned error.