govinfo:USCOURTS-ctd-3_24-cv-01996-0

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UNITED STATES DISTRICT COURT 
DISTRICT OF CONNECTICUT 
 
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Civil No. 3:24-cv-1996 (AWT) 
JESSICA BURCIAGA, CLAUDIA 
SAMPEDRO, JANET GUZMAN, ROSA 
ACOSTA, BRENDA GEIGER, IESHA 
MARIE CRESPO, GALLIENNE NABILA 
STEPHANIE RAO, AND LAUREN WOOD, 
 
  Plaintiffs, 
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v. 
 
TROPIX ULTRA LOUNGE, LLC d/b/a 
TROPIX ULTRA LOUNGE a/k/a TROPIX 
ULTRA; TROPIX CARIBBEAN GRILLE, 
LLC d/b/a TROPIX CARIBBEAN 
GRILLE a/k/a TROPIX ULTRA; and 
GAIRY BLAKE, 
 
  Defendants. 
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RULING ON MOTION TO DISMISS 
  
Plaintiffs Jessica Burciaga, Claudia Sampedro, Janet 
Guzman, Rosa Acosta, Brenda Geiger, Iesha Marie Crespo, 
Gallienne Nabila, Stephanie Rao, and Lauren Wood bring an eight-
count complaint against Tropix Ultra Lounge, LLC; Tropix 
Caribbean Grille, LLC; and Gairy Blake.  
Each plaintiff is a professional model who claims the 
defendants misappropriated and used without authorization her 
images, photos, and likenesses. The First Cause of Action 
alleges the defendants falsely associated themselves with the 
plaintiffs in violation of § 43 of the Lanham Act, 15 U.S.C. § 
1125(a)(1)(A). The Second Cause of Action alleges the defendants 
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violated the plaintiffs’ common law right to privacy under 
Connecticut law by appropriating their likenesses. The Third 
Cause of Action alleges the defendants violated the plaintiffs’ 
common law right to privacy under Connecticut law by portraying 
the plaintiffs in a false light. The Fourth Cause of Action 
alleges the defendants violated the Connecticut Unfair Trade 
Practices Act, Conn. Gen. Stat. § 42-110b. The Fifth Cause of 
Action alleges the defendants were negligent under Connecticut 
law. The Sixth Cause of Action alleges the defendants converted 
the plaintiffs’ property rights in their images. The Seventh 
Cause of Action alleges the defendants unjustly enriched 
themselves. The Eighth Cause of Action is a claim for quantum 
meruit. 
The defendants have moved to dismiss the following causes 
of action: the First (Lanham Act claim for false association) as 
to plaintiff Burciaga only, and as to all plaintiffs the Third 
(false light), Fifth (negligence), Sixth (conversion), and 
Eighth (quantum meruit). The defendants argue that Burciaga’s 
Lanham Act claim in the First Cause of Action is barred by the 
doctrine of issue preclusion and that the Third, Fifth, Sixth, 
and Eighth Causes of Action should be dismissed in their 
entirety because they fail to state a claim upon which relief 
can be granted. The plaintiffs have withdrawn the claims in the 
Sixth and Eighth Causes of Action. See Plaintiffs’ Memorandum of 
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Law in Opposition to Defendants’ Partial Motion to Dismiss (ECF 
No. 23) (“Pl. Mem.”) at 6 n.2. 
For the reasons set forth below, the motion to dismiss is 
being granted with respect to the Sixth and Eighth Causes of 
Action, and otherwise it is being denied.  
I. FACTUAL ALLEGATIONS 
“The complaint, which we must accept as true for purposes 
of testing its sufficiency, alleges the following 
circumstances.” Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir. 
1997). Each plaintiff “is a well-known professional model who 
earns her livelihood modeling and licensing her [i]mages to 
companies, magazines and individuals for the purpose of 
advertising products and services.” Compl. (ECF No. 1) ¶ 27.  
Jessica Burciaga is a: 
model and a business owner. . . . Burciaga began modeling 
in 2005 when she submitted a few photos to Stuff Magazine. 
The magazine responded by flying her out to New York for a 
photo shoot. After Burciaga’s first photo shoot, she won 
Stuff Magazine’s, “Neighborhood Knockout,” contest. The 
prize was $5,000, a 4-page spread in the magazine, and an 
appearance as a ring girl in EA Sports Fight Night Round 3 
video game. Burciaga’s popularity rose quickly, and she 
began appearing in various magazines including Playboy, 
Maxim, Import Tuner, Modified Mag, Performance Auto & 
Sound, Show Latina, Lowrider Magazine, and many others. 
Burciaga was the Playboy Playmate of the Month for February 
2009 and has appeared as herself in several episodes of the 
reality TV series The Girls Next Door. She has various 
business ventures, including a women’s online clothing 
boutique, www.SailorandSaint.com. Burciaga’s social media 
reach has surpassed 1.4 million followers on Instagram, 
over 3.2 million Facebook followers, and over 165,500 
followers on X (formerly known as Twitter). 
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Id. ¶ 34. 
  
Claudia Sampedro is: 
a Cuban born model, mother, and spokeswoman. . . . [A]t age 
16, was discovered by Elite models. Sampedro has appeared 
in many catalogues, and magazine editorials. She has a 
number of cover credits for magazines such as Nine 5 Four, 
Shock, Face to Face and Mixed. Sampedro is a sponsored 
model for Nutri Sups Nutrition and is also a spokesmodel 
and contracted model for Bare Ava. Sampedro has three 
children and is married to former Green Bay’s star 
defensive end Julius Peppers. Sampedro is in the Social 
Media Influencers top class with over a million Instagram 
followers and a further combined 150,000 fans on Facebook 
and X (formerly known as Twitter). 
 
Id. ¶ 37.  
Janet Guzman is: 
a social media star who is widely known for her self titled 
Instagram page. She has gained popularity there for her 
modeling and lifestyle photos, surpassing over 2 
million followers. She’s widely known to be Fashion Nova’s 
number 1 featured talent. She mostly promotes the clothes 
of the Fashion Nova clothing brand on her Instagram and has 
also appeared on the Fashion Nova Billboard located at 
Melrose and Fairfax (California). She was featured in an 
exclusive video interview with Fashion Nova in March of 
2022. She has also seen her janetguzman_TikTok channel 
become widely popular, with her videos on the platform 
earning over 1.9 million total likes. She also runs a 
popular OnlyFans subscription account and a 
travel\/lifestyle\/fashion vlog on YouTube. 
Id. ¶ 40.  
Rosa Acosta started: 
her classic ballet studies at the age of four at the Centro 
de la Cultura in Santiago, Dominican Republic. She later 
moved on to the ICA, (Instituto de Cultura y Arte), where 
she excelled as one of the most gifted students of the 
academy. After graduating with honors from the ICA and the 
Ballet School of Norma Garcia with a bachelor’s in art with 
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mention to Classic Ballet, she became part of the Dominican 
Nacional Ballet as the youngest soloist member in 2002. 
Partaking in all major classic and modern shows in the 
Dominican Republic, she was nominated twice by the 
Secretaria de Estado de la Juventud for her work in the 
category of Cultural Development. She initiated her 
modeling career in 2004, participating in magazines and 
television for prestigious Dominican enterprises. Acosta 
moved to the United States in 2006 where her career took a 
new turn, distinguishing herself in several areas of the 
modeling world, featuring in magazines, radio, television 
programs and commercials and numerous music videos. She has 
over 52,000 Facebook followers, over 1.6 million Instagram 
followers, and over 280,600 Twitter followers.  
 
Id. ¶ 43.  
Brenda Geiger is: 
a professional model and actress who performed with eight-
time Grammy nominee rapper Lil Wayne in a music video for 
two-time Grammy nominee singer Keri Hilson. She is most 
known for her work in Glamour Magazine and her appearance 
on “The Howard Stern Show” in a “Miss HTV March” contest. 
Geiger has appeared in numerous magazines such as Show, 
Maxim and Raw, and has modeled for several product 
campaigns such as Primitive Clothing, where she currently 
has her own line of custom skateboard decks. 
 
Id. ¶ 46.  
 Marie Crespo is: 
an American model and video star with combined social media 
following of nearly a million. Crespo has been featured in 
a number of magazines and has the covers of Models Latina 
March 2015 and Shock magazine. Crespo has also appeared in 
several catalogues such as Raw and Uncut and appeared in a 
dozen music videos for artists such as Rick Ross and French 
Montana. 
 
Id. ¶ 49.  
 Gallienne Nabila is: 
an actress and model residing in Los Angeles, California. 
From a young age she participated in pageants, public 
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speaking, dance, community service work, and singing. 
Nabila has been in the entertainment industry for over a 
decade working with brands such as Fashion Nova. She is 
currently signed to Wilhelmina Los Angeles and has a 
nonprofit geared towards the empowerment and advancement of 
young women. Nabila has over 2 million social media 
followers. 
 
Id. ¶ 52.  
 Stephanie Rao currently:  
is an influencer\/model. She is currently representing 
Fashion Nova and has previously worked for Shein & 
PrettyLittleThing. She has appeared alongside Kim 
Kardashian in a Carolina Lemke glasses advertisement as 
well as other high profile ad campaigns. She has her own 
website which focuses on providing a fitness journey to her 
clients and promoting physical, mental, and spiritual 
wellness. Rao has over 1.1 million Instagram followers. 
 
Id. ¶ 55.  
 Lauren Wood: 
after 8 years of serving in the Air Force, took her flight 
to a new career in Hollywood, winning hearts with her 
television debut on MTV’s Wild N’ Out where she starred on 
5 seasons and quickly gained recognition as the fan's 
favorite. This led to many opportunities on various TV 
shows, movies, and a long run in the modeling industry, 
booking countless fashion campaigns and billboards. Her 
down-to-earth authenticity, quick wit, and great sense of 
humor positioned her to join Rob Dyrdek and Steelo Brim on 
MTV’s Ridiculousness. A young mom, often sharing parenting 
and healthy lifestyle tips with her online community of 
over 2 million people ([Instagram] (1.7M) [T]ik[T]ok 
(125k), YouTube (4k) and X aka Twitter (38k), Wood dreams 
of restoring the sisterhood of women worldwide, reinstating 
the beautiful tradition of solidarity, support, and 
resilience. 
 
Id. ¶ 58.  
Defendants Tropix Ultra Lounge, LLC, and Tropix Caribbean 
Grille, LLC (collectively, “Tropix”) are both Connecticut-based 
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businesses. Tropix Ultra Lounge is a nightclub in Waterbury, 
Connecticut, and Tropix Caribbean Grille is a restaurant in 
Hartford, Connecticut. The plaintiffs allege that Tropix Ultra 
Lounge and Tropix Caribbean Grille are “sister establishments.” 
Id. ¶ 9. Defendant “Gairy Blake, in his capacity as principal, 
owner, and/or CEO [of Tropix], maintained operational control 
over [Tropix], including all advertising related thereto.” Id. ¶ 
24. 
 The plaintiffs allege they were depicted, without their 
authorization, in photos on the defendants’ social media pages.1 
The plaintiffs allege these images “were intentionally altered 
to make it appear that [each plaintiff] was either an employee 
working at Tropix, that she endorsed Tropix, or that she was 
otherwise associated or affiliated with Tropix.” Id. ¶ 35. The 
plaintiffs allege they have never been employed by, hired to 
endorse, or otherwise associated with the defendants. None of 
the plaintiffs has received remuneration for the defendants’ 
unauthorized use of their likenesses and images. 
 The defendants appropriated the plaintiffs’ images and 
likenesses “for their own commercial and financial benefit.” Id. 
 
1 The photos at issue are exhibits to the Complaint. See Exhibit A (ECF No. 1-
1) (altered photos of Burciaga); Exhibit B (ECF No. 1-2) (altered photo of 
Sampedro); Exhibit C (ECF No. 1-3) (altered photos of Guzman); Exhibit D (ECF 
No. 1-4) (altered photos of Acosta); Exhibit E (ECF No. 1-5) (altered photo 
of Geiger); Exhibit F (ECF No. 1-6) (altered photos of Crespo); Exhibit G 
(ECF No. 1-7) (altered photo of Nabila); Exhibit H (altered photos of Rao); 
Exhibit I (altered photo of Wood). 
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¶ 64. Because the defendants used their social media pages to 
promote Tropix and attract patrons, they created “the false 
impression with potential clientele that [the plaintiffs] either 
worked at, endorsed Tropix, or was otherwise associated or 
affiliated with Tropix.” Id. ¶ 65. This allowed the defendants 
to “receive certain benefits from that false impression, 
including but not limited to monetary payments; increased 
promotional, advertising, marketing, and other public relations 
benefits; notoriety; publicity; and an increase in business 
revenue, profits, proceeds, and income.” Id. ¶ 66. 
The plaintiffs allege that their “careers in the modeling 
industry place a high degree of value on their good will and 
reputation, which is critical to maximize their earning 
potential, book modeling contracts, and establish each of their 
individual brands.” Id. ¶ 28. Because of their desire to 
“establish[] and maintain[] their brands, Plaintiffs are 
necessarily selective concerning the companies, and 
brands, for which they model.” Id. Thus, the plaintiffs “allege 
that any improper unauthorized use of their Images at issue in 
this case has substantially injured their respective careers and 
reputations, because of the negative connotations of false 
impression of association with Tropix.” Id. ¶ 76. 
II. LEGAL STANDARD  
When deciding a motion to dismiss under Rule 12(b)(6), the 
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court must accept as true all factual allegations in the 
complaint and must draw inferences in a light most favorable to 
the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 
See also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 
86 (2d Cir. 2015) (“[T]he court must assume the factual 
allegations in the complaint to be true, ‘even if [they are] 
doubtful in fact’. . . .” (citation omitted)). Although a 
complaint “does not need detailed factual allegations, a 
plaintiff’s obligation to provide the ‘grounds’ of his 
‘entitle[ment] to relief’ requires more than labels and 
conclusions, and a formulaic recitation of the elements of a 
cause of action will not do.” Bell Atlantic Corp. v. Twombly, 
550 U.S. 544, 555 (2007). “On a motion to dismiss, courts ‘are 
not bound to accept as true a legal conclusion couched as a 
factual allegation[.]’” Id. (quoting Papasan v. Allain, 478 U.S. 
265, 286 (1986)). 
“Nor does a complaint suffice if it tenders naked 
assertions devoid of further factual enhancement.” Ashcroft v. 
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 
557). “Factual allegations must be enough to raise a right to 
relief above the speculative level, on the assumption that all 
the allegations in the complaint are true (even if doubtful in 
fact).” Twombly, 550 U.S. at 555 (internal quotation marks 
omitted). However, the plaintiff must plead “only enough facts 
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to state a claim to relief that is plausible on its face.”  Id. 
at 547. “A claim has facial plausibility when the [claimant] 
pleads factual content that allows the court to draw the 
reasonable inference that the defendant is liable for the 
misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility 
standard is not akin to a ‘probability requirement,’ but it asks 
for more than a sheer possibility that a defendant has acted 
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a 
complaint pleads facts that are “merely consistent with” a 
defendant’s liability, it ‘stops short of the line between 
possibility and plausibility of entitlement to relief.’” Id. 
(quoting Twombly, 550 U.S. at 557). 
In its review of a motion to dismiss for failure to state a 
claim, the court may consider “only the facts alleged in the 
pleadings, documents attached as exhibits or incorporated by 
reference in the pleadings and matters of which judicial notice 
may be taken.” Samuels v. Air Transport Local 504, 992 F.2d 12, 
15 (2d Cir. 1993).  
III. DISCUSSION 
A. First Cause of Action: Burciaga’s Lanham Act Claim 
The only argument the defendants make in support of their 
position that Burciaga’s Lanham Act claim should be dismissed is 
that it is barred by the doctrine of issue preclusion.  
Section 43(a) of the Lanham Act prohibits the:  
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use[] in commerce [of] any word, term, name, symbol, or 
device, or any combination thereof, or any false 
designation of origin, false or misleading description of 
fact, or false or misleading representation of fact 
which . . . is likely to cause confusion, or to cause 
mistake, or to deceive as to the affiliation, connection, 
or association of such person with another person, or as to 
the origin, sponsorship, or approval of his or her goods, 
services, or commercial activities by another person[.]  
 
15 U.S.C. § 1125(a)(1)(A). “This provision is intended to 
prevent consumer confusion regarding a product’s source, to 
enable those that fashion a product to differentiate it from 
others on the market, and to protect against the risk that 
consumers will mistakenly believe that the trademark owner 
sponsors or endorses the use of the challenged mark.” Souza v. 
Exotic Island Enters., Inc., 68 F.4th 99, 109–10 (2d Cir. 2023) 
(internal quotation marks omitted). 
To prevail on a false association claim under Section 43 of 
the Lanham Act, “a plaintiff must prove, among other [things], 
‘that there is the likelihood of confusion between the 
plaintiff's good or service and that of the defendant.’” Id. at 
110 (quoting Electra v. 59 Murray Enters., Inc., 987 F.3d 233, 
257 (2d Cir. 2021)). “To determine whether there is a likelihood 
of consumer confusion, we look to our eight familiar Polaroid 
factors: (1) strength of the trademark; (2) similarity of the 
marks; (3) proximity of the products and their competitiveness 
with one another; (4) evidence that the senior user may bridge 
the gap by developing a product for sale in the market of the 
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alleged infringer's product; (5) evidence of actual consumer 
confusion; (6) evidence that the imitative mark was adopted in 
bad faith; (7) respective quality of the products; and (8) 
sophistication of consumers in the relevant market.” Id. at 110 
(citing Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 
495 (2d Cir. 1961)). “Those factors are neither exhaustive nor 
applied mechanically.” Id. (citations omitted). “No single 
factor is dispositive; rather, each is evaluated ‘in the context 
of how it bears on the ultimate question of likelihood of 
confusion as to the source of the product.’” Id. (quoting 
Brennan’s, Inc. v. Brennan's Rest., L.L.C., 360 F.3d 125, 130 
(2d Cir. 2004)).   
With respect to the first Polaroid factor, recognizability 
is the “‘bottom line’ barometer for strength of mark . . . .” 
Souza, 68 F.4th at 110. “[I]n celebrity false endorsement cases 
the strength of the mark refers to the level of recognition that 
the plaintiff has among the consumers to whom the advertisements 
are directed.” Id. (internal quotation marks omitted). Courts 
“analyze[] the record of each [plaintiff’s] public prominence to 
determine the strength of their marks.” Id. 
Courts “principally determine a mark’s strength by 
reference to ‘the market in which the mark is used.’” City of 
New York v. Henriquez, 98 F.4th 402, 414 (2d Cir. 2024) (quoting 
Morningside Grp. Ltd. v. Morningside Cap. Grp., L.L.C., 182 F.3d 
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133, 139 (2d Cir. 1999)). “[T]o achieve the status of a strong 
mark, [a] plaintiff must demonstrate distinctiveness in the 
relevant market, for if the mark is not recognized by the 
relevant consumer group, a similar mark will not deceive those 
consumers and thereby increase search costs.” Brennan’s, Inc. v. 
Brennan’s Rest., L.L.C., 360 F.3d 125, 132 (2d Cir. 2004) 
(citations omitted). “[T]he relevant market is the pool of 
actual and potential customers of [the defendants], for it is 
those patrons whose potential confusion is at issue.” Id. 
The defendants argue that “another district court in this 
Circuit has already decided that Burciaga’s identity is not a 
sufficiently strong mark for purposes of the Lanham Act and is 
not capable of causing consumer confusion.” Memorandum of Law in 
Support of Defendants’ Motion to Dismiss (ECF No. 14) (“Def. 
Mem.”) at 6. Therefore, they contend that “[i]ssue preclusion, 
or collateral estoppel, . . . bars successive litigation of 
Burciaga’s false association or false endorsement claim.” Id. 
See also Defendants’ Reply Memorandum in Further Support of 
Their Motion to Dismiss (ECF No. 26) (“Def. Rep.”) at 2. 
(“[A]nother court in this Circuit has already held with the 
benefit of a full record following a motion for summary judgment 
that Ms. Burciaga does not have a sufficiently recognizable mark 
to sustain a false endorsement claim under the Lanham Act.”) 
Issue preclusion, or collateral estoppel, “prevents parties 
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or their privies from relitigating in a subsequent action an 
issue of fact or law that was fully and fairly litigated in a 
prior proceeding.” Marvel Characters, Inc. v. Simon, 310 F.3d 
280, 288 (2d Cir. 2002) (citations omitted). Issue preclusion 
applies when: “(1) the identical issue was raised in a previous 
proceeding; (2) the issue was actually litigated and decided in 
the previous proceeding; (3) the party had a full and fair 
opportunity to litigate the issue; and (4) the resolution of the 
issue was necessary to support a valid and final judgment on the 
merits.” Id. at 288–89 (internal quotation marks omitted).  
With respect to the first prong, “the issue decided in the 
earlier case and the issue to which the [defendant] seeks to 
give preclusive effect [must] be identical.” Bifolck v. Philip 
Morris USA Inc., 936 F.3d 74, 80–81 (2d Cir. 2019). Issue 
preclusion is “concerned not with ‘claims or . . . causes of 
action as a whole,’ but with issues—-‘single, certain and 
material point[s] arising out of the allegations and contentions 
of the parties . . . .’” Id. at 81 (alterations in original) 
(quoting Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 48 (2d 
Cir. 2014)). The “[i]dentity of the issue is established by 
showing that the same general legal rules govern both cases and 
that the facts of both cases are indistinguishable as measured 
by those rules.” Wright & Miller, 18 Fed. Prac. & Proc. Juris. § 
4425 Issue Preclusion—Questions of Law and Law Application (3d 
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ed. 2025). “Preclusion should not apply if there has been a 
change either in the facts or the governing rules.” Id. See also 
Restatement (Second) of Judgments § 27 (1982) (“Unless a [losing 
party] can establish changed circumstances occurring in the time 
between the two [sets of litigation], the prior judgment is 
conclusive . . . .”).  
In Gibson v. SCE Grp., Inc., Burciaga and other models sued 
two New York City strip clubs, claiming, inter alia, that the 
strip clubs violated § 43 of the Lanham Act by using without 
authorization the models’ “pictures to advertise their 
commercial establishments.” 391 F. Supp. 3d 228, 244 (S.D.N.Y. 
2019). Burciaga and the other plaintiffs in that case claimed 
that use by the strip clubs of their protected marks--their 
likenesses--in advertisements were likely to cause consumer 
confusion as to their association with or sponsorship of the 
strip clubs. 
At summary judgment, the court applied the factors set out 
in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d 
Cir. 1961), to determine whether Burciaga and the other 
plaintiffs had established consumer confusion for purposes of 
the Lanham Act. In analyzing the Polaroid factors, the court 
concluded that “strength of the trademark”, “evidence of actual 
consumer confusion”, “evidence that the imitative mark was 
adopted in bad faith”, and “sophistication of consumers in the 
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relevant market” weighed against Burciaga and her co-plaintiffs; 
“similarity of the marks” weighed in their favor; and “proximity 
of their products and competitiveness with one another” was 
neutral. Gibson, 391 F. Supp. 3d at 245-249.  
With respect to the first Polaroid factor--strength of 
mark--Burciaga and her fellow plaintiffs “rel[ied] on . . . 
[their] resumes and their social media accounts” to argue they 
had sufficiently strong marks to sustain their Lanham Act 
claims. Id. The court noted that Burciaga and the other 
plaintiffs “ha[d] not provided any survey that directly shows 
general consumer recognition or specific recognition by [the 
strip clubs’] customers.” Id. at 246. “[I]n the absence of a 
consumer survey, . . . the court [could not] conclude that any 
of them have attained the level of celebrity that other courts 
in this Circuit have considered to constitute strong marks.” Id. 
at 247.  
After balancing the Polaroid factors, the court held that 
Burciaga and the other plaintiffs had not established their 
Lanham Act claim. That holding was affirmed on appeal. See 2023 
WL 4229913 (2d Cir. June 28, 2023).   
Burciaga contends that the factual issues in Gibson and 
this case are not identical.2 The court agrees. 
 
2 Burciaga also argues that the motion to dismiss should be denied because 
“first, no court evaluating a Rule 12 motion will address the Polaroid 
factors, including evidence of strength of mark . . . , and, second, prior to 
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As discussed above, a “plaintiff must demonstrate 
distinctiveness in the relevant market . . . .” Brennan’s, Inc., 
360 F.3d at 132 (citations omitted). “[T]he relevant market is 
the pool of actual and potential customers of [the 
defendants][.]” Id. The relevant market in Gibson was the pool 
of actual and potential customers of the New York City strip 
clubs; here, the relevant market is the pool of actual and 
potential customers of Tropix. Thus, the facts of both cases 
relevant to the question of whether Burciaga has a sufficiently 
strong mark are not indistinguishable. See Wright & Miller, 18 
Fed. Prac. & Proc. Juris. § 4425 Issue Preclusion—Questions of 
Law and Law Application (3d ed. 2025) (“Preclusion should not 
apply if there has been a change either in the facts or the 
governing rules.”) 
Therefore, Burciaga’s Lanham Act claim is not barred by the 
doctrine of issue preclusion.  
B. Third Cause of Action: False Light 
The defendants argue that the plaintiffs have failed to 
state a claim for false light invasion of privacy under 
 
Souza and Gibson . . . , the Second Circuit had never issue[d] a bright line 
rule concerning this Polaroid strength of mark factor.” Pl. Mem. at 4.  
As to the first argument, “[i]n the context of a motion to dismiss, 
courts have disposed of trademark claims where simply looking at the work 
itself, and the context in which it appears, demonstrates how implausible it 
is that a viewer will be confused into believing that the plaintiff endorsed 
the defendant’s work.” The Cousteau Soc’y, Inc. v. Cousteau, 498 F. Supp. 3d 
287, 309 (D. Conn. 2020) (internal quotation marks omitted). Also, in light 
of the court’s conclusion that the factual issues in Gibson and this case are 
not identical, the court does not address the second argument.   
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Connecticut law. The defendants assert that “[t]here is nothing 
offensive, standing alone” about the alleged false impression 
that plaintiffs endorsed or were affiliated with Tropix, so the 
“[p]laintiffs fail to allege facts suggesting that such a false 
light ‘would be highly offensive to a reasonable person’” as 
required under Connecticut law. Def. Mem. At 8. 
Under Connecticut law, “a false light invasion of privacy 
occurs if ‘[1] the false light in which the other was placed 
would be highly offensive to a reasonable person, and [2] the 
actor had knowledge of or acted in reckless disregard as to the 
falsity of the publicized matter and the false light in which 
the other would be placed.’” Goodrich v. Waterbury Republican-
Am., Inc., 188 Conn. 107, 131 (1982) (quoting Restatement 
(Second) of Torts § 652E (1977)). The false light tort “protects 
one’s interest in not being placed before the public in an 
objectionable false light or false position, ‘or in other words, 
otherwise than as he is.’” Id. (quoting Restatement (Second) of 
Torts § 652E (1977)). 
The requirement that a plaintiff has been placed in a false 
light that would be highly offensive to a reasonable person, is 
met: 
only when the defendant knows that the plaintiff, as a 
reasonable [person], would be justified in the eyes of the 
community in feeling seriously offended and aggrieved by 
the publicity. Complete and perfect accuracy in published 
reports concerning any individual is seldom attainable by 
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any reasonable effort, and most minor errors, such as a 
wrong address for [her] home, or a mistake in the date when 
[s]he entered [her] employment or similar unimportant 
details of [her] career, would not in the absence of 
special circumstances give any serious offense to a 
reasonable person. The plaintiff’s privacy is not invaded 
when the unimportant false statements are made, even when 
they are made deliberately. It is only when there is such a 
major misrepresentation of [her] character, history, 
activities or beliefs that serious offense may reasonably 
be expected to be taken by a reasonable [person] in [her] 
position, that there is a cause of action for invasion of 
privacy.  
 
Restatement (Second) of Torts § 652E cmt. c (1977). “Generally, 
‘[w]hether the matter communicated to the public would be highly 
offensive to a reasonable person sufficient to support a false 
light claim presents a question of fact for the trier of fact.’” 
Chiaravallo v. Middletown Transit Dist., 561 F. Supp. 3d 257, 
292 (D. Conn. 2021) (alteration in original) (quoting Chernovetz 
v. Harries, 2021 WL 1912461, at *5 (Conn. Super. Ct. Apr. 27, 
2021)).  
The Complaint alleges that the “[p]laintiffs’ careers in 
the modeling industry place a high degree of value on their good 
will and reputation, which is critical to maximize their earning 
potential, book modeling contracts, and establish each of their 
individual brands.” Compl. ¶ 28. “In furtherance of 
establishing, and maintaining, their brands, Plaintiffs are 
necessarily selective concerning the companies, and brands, for 
which they model.” Id. In paragraph 116, the Complaint alleges 
“republication of [p]laintiffs’ image and likeness was altered 
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so as to reach a new audience and/or promote a different 
product.” In paragraph 117, the Complaint alleges “Defendants 
invaded and violated Plaintiffs’ privacy and portrayed them in a 
false light by creating the false impression with the consumers 
that Plaintiffs were either working at Defendants’ 
establishments, endorsed same, were affiliated, associated, or 
otherwise connected with same, or had agreed to promote same.” 
In paragraph 118, the Complaint alleges that “[a]ffiliation with 
Defendants’ establishments could lead to significant potential 
career and personal damage to a professional model because it 
could lead other clients to refuse to work with them or drop 
them as a model.” 
Accepting these factual allegations as true and drawing 
inferences in a light most favorable to the plaintiffs, the 
Complaint alleges facts that could establish that a false 
impression of association with Tropix is highly offensive to a 
reasonable person. See Lancaster v. Ecuadorian Inv. Corp., 2020 
WL 1863305, at *2 (D. Conn. Apr. 14, 2020) (plaintiff models’ 
allegations that clients might refuse to hire them due to their 
perceived affiliation with a night club was sufficient to plead 
that the unauthorized use of their images was highly offensive); 
Moreland v. Beso Lounge & Rest. LLC, 2020 WL 5302312, at *6 (D. 
Conn. Sept. 4, 2020) (same). See also Souza v. Algoo Realty, 
LLC, 2020 WL 5300925, at *8 (D. Conn. Sept. 4, 2020) (holding 
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that night club’s unauthorized use of models’ likenesses could 
be highly offensive to a reasonable person while noting that the 
question was “something of a close call” because there were no 
allegations that the night clubs hosted nude or semi-nude 
performances or that the images of the models were altered).  
The defendants argue that “[t]here is nothing offensive, 
standing alone, about a nightclub, and the allegations here are 
distinguishable from those cases brought on behalf of similarly-
situated plaintiffs against defendants who own or operate strip 
clubs or gentleman’s clubs.” Def. Mem. at 8 (citing cases). 
However, the fact that being associated with a strip club would 
be highly offensive to a reasonable person does not dictate the 
conclusion that being associated with a night club cannot be 
highly offensive to a reasonable person under a particular set 
of facts and circumstances. See Algoo Realty, LLC, 2020 WL 
5300925, at *8. 
Therefore, the motion to dismiss is being denied as to the 
Third Cause of Action.  
C. Negligence 
“The essential elements of a cause of action in negligence 
are well established: duty; breach of that duty; causation; and 
actual injury.” Archambault v. Soneco/NE., Inc., 287 Conn. 20, 
32 (2008) (internal quotation marks omitted). As to the first 
element, “[t]he nature of the duty, and the specific persons to 
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whom it is owed, are determined by the circumstances surrounding 
the conduct of the individual.” Bloomfield Health Care Ctr. of 
Conn., LLC v. Doyon, 185 Conn. App. 340, 353 (quoting Munn v. 
Hotchkiss School, 326 Conn. 540, 548 (2017)). 
The ultimate test of the existence of the duty to use care 
is found in the foreseeability that harm may result if it 
is not exercised. . . . By that [it] is not meant that one 
charged with negligence must be found actually to have 
foreseen the probability of harm or that the particular 
injury [that] resulted was foreseeable[.] . . . [T]he test 
for the existence of a legal duty entails (1) a 
determination of whether an ordinary person in the 
defendant’s position, knowing what the defendant knew or 
should have known, would anticipate that harm of the 
general nature of that suffered was likely to result, and 
(2) a determination, on the basis of a public policy 
analysis, of whether the defendant’s responsibility for its 
negligent conduct should extend to the particular 
consequences or particular plaintiff in the case. 
 
Munn, 326 Conn. at 548 (2017) (internal quotation marks 
omitted). 
 With respect to the public policy analysis, “Connecticut 
courts addressing public policy questions have considered four 
factors to determine whether to impose a duty in negligence 
cases: ‘(1) the normal expectation of the participants in the 
activity under review; (2) the public policy of encouraging 
participation in the activity, while weighing the safety of the 
participants; (3) the avoidance of increased litigation; and (4) 
the decisions of other jurisdictions.’” Munn v. Hotchkiss 
School, 795 F.3d 324, 332 (2d Cir. 2015) (quoting Monk v. Temple 
George Assocs., LLC, 273 Conn. 108, 118 (2005)).  
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 The defendants argue that “the lack of any alleged 
relationship between the parties, the self-professed widespread 
availability of Plaintiffs’ photos on the internet and social 
media (without any clear licensing terms or restrictions 
alleged), and the increased litigation that has already ensued 
as a result of the dozens, if not hundreds, of substantively 
similar lawsuits in this and other jurisdictions, militates 
against finding a duty of care, particularly where other 
statutory and common law remedies exist to protect the conduct 
at issue.” Def. Mem. at 12-13.  
 However, “[c]ertainly, the Defendants knew that the use of 
Plaintiffs’ images may affect the Plaintiffs’ reputations; indeed, 
arguably, [t]he Defendants were hoping for some benefit from the 
public exploitation of the Plaintiffs.” Geiger v. C&G of Groton, 
Inc., 424 F. Supp. 3d 276, 300 (D. Conn. 2019). See Compl. ¶ 64 
(alleging the defendants used the plaintiffs’ images without 
authorization for “their own commercial and financial benefit”). 
“Likewise, given the potential applicability of statutory and 
common-law protections against the actions alleged to have been 
undertaken by the Defendants, such as the Lanham Act, false light 
invasion of privacy, and CUTPA, there may be valid public policy 
reasons for extending a duty of care in this context.” Geiger, 424 
F. Supp. 3d at 300. “Because further development of the facts 
during the course of discovery may shed more light on this issue 
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[of public policy] as well as on the issue of foreseeability--
these issues need to be resolved on a more complete record.” Id. 
(internal citations omitted).  
Therefore, the motion to dismiss is being denied as to the 
Fifth Cause of Action.  
IV. CONCLUSION 
For the reasons set forth above, the defendants’ Motion to 
Dismiss (ECF No. 13) is hereby GRANTED in part and DENIED in 
part. The Sixth and Eighth Causes of Action are hereby 
dismissed, and the motion is being denied as to the First, 
Third, and Fifth Causes of Action.  
It is so ordered.  
Dated this 12th day of March 2026, at Hartford, 
Connecticut. 
          /s/AWT                     
        Alvin W. Thompson 
         United States District Judge 
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