Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS, OR IN THE ALTERNATIVE TO STRIKE PORTIONS OF, PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND ORDER DENYING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION AGAINST ALL DEFENDANTS PAEZ, District Judge. I. Introduction and Factual Allegations Diana, Princess of Wales (“Princess Diana”) was one of the most beloved, most photographed and most talked about celebrities of the last seventeen years. As a result of her tragic and untimely death, her name has been at the crest of the wave of global popular culture for over a year. Princess Diana’s public persona is now the subject of this dispute about the right to use her name and likeness to market goods and services. This action involves defendants’ production and advertisement of jewelry, commemorative plates, sculptures and dolls depicting Princess Diana. Plaintiffs are the executors of the Estate of Diana, Princess of Wales (the “Estate”) and trustees of the Diana, Princess of Wales Memorial Fund (the “Fund”). The Fund is a non-profit charitable trust organized under the laws of England and Wales, which, through its U.S. entity, engages in charitable activities in the United States and California. Defendant Roll International Corporation, Inc. (“Roll”) is the managing general partner of defendant the Franklin Mint Company. (“Franklin Mint”). Roll allegedly has its principal place of business in Los Angeles, while the Franklin Mint has its principle place of business in Pennsylvania. Defendants Stewart Resnick and Lynda Resnick, who allegedly reside in California, own, control and/or are general partners of Roll and the Franklin Mint. Princess Diana died on August 31, 1997. Her assets passed by will to her Estate. On September 30, 1997, on behalf of the executors of the Estate, attorney Anthony Robert Julius filed with the State of California a Registration of Claim as Suceessor-in-Inter-est pursuant to California Civil Code § 990. In addition, the Estate allegedly filed three applications for federal trademark registrations in various classes for “Diana Princess of Wales” and “Diana Princess of Wales Memorial Fund” with priority dates of September 4,1997 and September 11,1997. The Fund was established on September 4, 1997 to accept donations to be given to various charities with which Princess Diana was associated during her lifetime. Plaintiffs allege that the Fund is, subject to certain reservations, the only charity authorized by the Estate to engage in charitable activities and utilize Princess Diana’s name, likeness, image, and marks. Plaintiffs allege that the Estate granted the Fund exclusive licenses, subject to certain reservations, to the name and likeness of Princess Diana and to the trademarks “Diana, Princess of Wales” and “Diana, Princess of Wales Memorial Fund.” The Charities Commission for England and Wales allegedly approved those licenses to the Fund, and the parties allegedly completed the licenses on February 27, 1998. Plaintiffs allege that the Fund has used and authorized the use of its trademarks on products and services in the United States. On or about June 25, 1997, defendant Lynda Resnick purchased a dress sold by Princess Diana at a charity auction. According to plaintiffs, Resnick stated when she bought the dress that she did not intend to commercially exploit it. Plaintiffs allege that on August 8, 1997, however, defendants filed an intent to use trademark application for “Diana, Forever A Princess.” On September 4,1997, defendant Stewart Resnick, on behalf of the other defendants, sought permission to utilize Princess Diana’s name and likeness on products and in advertising. In October 1997, plaintiffs refused to authorize defendants’ use of Princess Diana’s name and likeness. Thereafter, plaintiffs allegedly advised defendants both orally and in writing that any exploitation of Princess Diana’s identity by defendants was unauthorized. On September 4, 1997, defendants allegedly filed trademark applications for “Diana, Queen of Our Hearts,” “Diana, Queen of Hearts,” “Diana, Angel of Mercy” and “Diana, the People’s Princess” for use with jewelry, plates, sculptures and dolls. Likewise, on September 19, 1997, defendants allegedly filed applications for “Design of Diana Wearing Tiara,” “Design of Head of Diana Wearing Ribbon,” “Design of Princess Diana Wearing Ribbon and Princess Diana” and “Design of Princess Diana Wearing a Tiara and Princess Diana” for use with similar goods. According to plaintiffs, the Patent and Trademark Office Examining Attorney has issued non-final office action letters to defendants rejecting their various trademark applications, in part because the marks falsely suggest a connection with Princess Diana. Plaintiffs allege that defendants have promoted and sold various items of unauthorized Princess Diana merchandise throughout the United States, including a “Diana, Princess of Wales Porcelain Portrait Doll” featuring a reproduction of the dress bought by Lynda Resniek, a “Diana, Queen of Hearts Jeweled Tribute Ring,” a “Diana, England’s Rose Diamond Pendant,” a “Princess Diana Tiara Ring,” an “England’s Rose Heirloom Collector Plate,” a “Diana, The People’s- Princess Doll,” a “Princess Diana Crown Ring” and the “Diana, Forever Sparkling Classic Drop Earrings.” Defendants’ products and advertising feature Princess Diana’s name and likeness. Plaintiffs allege that defendants are using their advertising to improperly benefit from the goodwill associated with Princess Diana’s identity. According to plaintiffs, defendants attempt to conceal their efforts to benefit from Princess Diana’s death by falsely and misleadingly implying an endorsement, association or affiliation with Princess Diana, her Estate and the Fund. Defendants allegedly do this through (a) their use of Diana’s name and likeness; (b) their characterization of their products as a way to “honor” or “commemorate” Diana; (c) their references to Diana’s charitable activities; (d) their offer of a “certificate of authenticity” .with their merchandise; and (e) their statement that “100% of the ... price [of the products] will be donated to Diana, Princess of Wales’ charities.” Plaintiffs assert claims against all defendants for (1) false designation of origin and false endorsement under the Lanham Act; (2) federal trademark dilution in violation of 15 U.S.C. § 1125(c); (3) infringement of California’s statutory right of publicity, California Civil Code § 990; (4) false advertising under the Lanham Act; and (5) unfair competition and false and misleading advertising in violation of California Business and Professions Code §§ 17200 and 17500, et seq. Pending before the Court are (1) Defendants’ Request for Judicial Notice in Connection with Defendants’ Motion to Dismiss Plaintiffs’ Complaint; (2) a Motion by Defendants Franklin Mint Company, Roll International Corporation, Inc., Stewart Resnick and Lynda Resnick to Dismiss, or in the Alternative to Strike Portions of, Plaintiffs’ First Amended Complaint; (3) Plaintiffs’ Motion for Preliminary Injunction; and (4) Defendants’ Objections to and Motion to Strike Declarations Submitted by Plaintiffs in Support of Motion for Preliminary Injunction. Upon consideration of the papers submitted by the parties’ in conjunction with each motion, and the oral arguments of counsel, defendants’ request for judicial notice of a complaint in a Delaware declaratory relief action by defendants’ competitor against the Fund is DENIED as the evidence proffered is not relevant to the questions before the Court. Defendants’ Motion to Dismiss or Strike is GRANTED IN PART AND DENIED IN PART. The motion to dismiss plaintiffs’ Third Claim for relief under Civil Code § 990 is GRANTED because choice of law principles dictate application of the law of Great Britain. Defendants’ motion to dismiss plaintiffs’ First Claim for relief for false endorsement and false origin is DENIED because likelihood of confusion is a question of fact. Defendants’ motion to dismiss plaintiffs’ Second Claim for relief is DENIED because plaintiffs sufficiently allege that their mark had acquired secondary meaning as a source of the charitable activities of Diana, Princess of Wales. Defendants’ motion to dismiss plaintiffs’ Fourth and Fifth Claims for relief for false advertising under the Lanham Act and under California law, respectively is DENIED. Defendants’ motion to strike language in the complaint referring to defendants as “vultures feeding on the dead” is GRANTED. The motion to strike plaintiffs’ claim for damages under § 990 is moot. Finally, plaintiffs’ motion for a preliminary injunction is DENIED because plaintiffs have failed to establish a likelihood of success on the merits with respect to their false origin and false endorsement, trademark dilution, and false advertising claims. II. Discussion A. Motion to Dismiss 1. Standard A motion to dismiss under Fed. R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Accordingly, the scope of review on a motion to dismiss for failure to state a claim is limited to the contents of the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir.1994). The court may, however, consider exhibits submitted with the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1989); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.1988). In fact, even if a document is neither submitted with the complaint nor explicitly referred to in the complaint, the district court may consider the document in ruling on a motion to dismiss so long as the complaint necessarily relies on the document and the document’s authenticity is not contested. Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.1998). Dismissal under Rule 12(b)(6) may be based either on the “lack of a cognizable legal theory” or on “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). The issue on a motion to dismiss for failure to state a claim is not whether the claimant will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims asserted. Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir.1997). When evaluating a Rule 12(b)(6) motion, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir.1994). The court is not required, however, to accept “conelusory legal allegations cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Cleqg, 18 F.3d at 754-55. Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). The notice pleading standard set forth in Rule 8 establishes “a powerful presumption against rejecting pleadings for failure to state a claim.” Gilligan, 108 F.3d at 248 (citations omitted). Consequently, a court may not dismiss a complaint for failure to state a claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In keeping with this liberal pleading standard, the district court should grant the plaintiff leave to amend if the complaint can possibly be cured by the inclusion of additional factual allegations. Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995). 2. Third Claim: California Civil Code § 990 Defendants move to dismiss plaintiffs’ Third Claim for relief under California Civil Code § 990, arguing that British law should apply because Princess Diana was domiciled in Great Britain at the time of her death. Great Britain does not recognize a descendible right of publicity. See J. Thomas McCarthy, Rights of Publicity & Privacy, § 6.21 (West 1998) (discussing absence of right of publicity under English law, including recent cases recommending legislative action); Bi-Rite Enterprises, Inc. v. Bruce Miner Co., Inc., 757 F.2d 440, 442 (1st Cir.1985) (“Great Britain does not recognize a right of publicity.”) (citing Tolley v. Fry, 1 K.B. 467 (1930)); Nice Man Merchandising, Inc. v. Logocraft Ltd., 1992 WL 59133, 23 U.S.P.Q.2d 1290, 1293 (E.D.Penn.1992) (Great Britain does not recognize right to control commercial exploitation of personal names or likenesses). By contrast, California law provides a statutory post-mortem right of publicity. Cal. Civ.Code § 990; see also McCarthy, Rights of Publicity & Privacy, § 6.4[F][6][a] (§ 990 enacted to legislatively overrule California Supreme Court holding that California law recognized little, if any, post-mortem right to publicity) (citing Lugosi v. Universal Pictures, 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425 (1979)). Section 990 creates a state registration scheme by which a person claiming to be a successor-in-interest to post-mor-tem publicity rights may register a claim with the California Secretary of State. Only two courts have applied § 990 in published decisions. See Astaire v. Best Film & Video Corp., 116 F.3d 1297, as amended, 136 F.3d 1208 (9th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 161, 142 L.Ed.2d 132 (1998); Joplin Enterprises v. Allen, 795 F.Supp. 349, 351 (W.D.Wash.1992). Neither Astaire nor Joplin addressed the choice of law question presented here. (b) The rights recognized under this section are property rights, freely transferable, in whole or in part, by contract or by means of trust or testamentary documents .... “In a federal question action where the federal court is exercising supplemental jurisdiction over state claims, the federal court applies the choice-of-law rules of the forum state — in this case, California.” Paracor Finance, Inc. v. General Elec. Capital Corp., 96 F.3d 1151, 1164 (9th Cir.1996). Under California law, “[a] separate choice-of-law inquiry must be made with respect to each issue in a case.” Application Group, Inc. v. Hunter Group, Inc., 61 Cal.App.4th 881, 896, 72 Cal.Rptr.2d 73 (1st Dist.1998). Here, we consider first what law applies to determine whether plaintiffs have a right of publicity in Princess Diana’s name and likeness. California generally resolves conflict of law questions through a “governmental interest” analysis. Reich v. Purcell, 67 Cal.2d 551, 554, 63 Cal.Rptr. 31, 432 P.2d 727 (1967); Waggoner v. Snow, Becker, Kroll, Klaris & Krauss, 991 F.2d 1501, 1506 (9th Cir.1993). This approach requires the court to “find the proper law to apply based upon the interests of the litigants and the involved states.” Offshore Rental Co. v. Continental Oil Co., 22 Cal.3d 157, 161, 148 Cal.Rptr. 867, 583 P.2d 721 (1978). With respect to personal property, however, California law dictates that “[i]f there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile.” Cal. Civ.Code § 946. Defendants contend § 946 governs our inquiry and mandates application of British law; plaintiffs argue the choice of law question must be resolved under California’s standard governmental interest analysis. The post-mortem publicity rights recognized in § 990 are property rights. Cal. Civ.Code § 990(b); Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir.1988) (rights under § 990 and analogous common law rights are property rights; appropriation of common law rights is a tort in California). Consequently, § 946 applies on its face and governs at least the initial conflict of laws question. See Estate of Nolan, 135 Cal.App.2d 16, 20, 286 P.2d 899 (1st Dist.1955) (§ 946 is part of rules governing conflict of laws). As the Eleventh Circuit explained in a right of publicity case arising before § 990 was enacted: Given the explicit language of Cal. Civil Code § 946, we can reasonably conclude that although in California the “governmental interests analysis” applies to choice of law issues arising from a question of Whether an existing right has been tor-tiously infringed, the law of the domicile controls to decide whether the allegedly infringed property right exists in the first instance. Acme Circus Operating Co., Inc. v. Kuperstock, 711 F.2d 1538, 1541 (11th Cir.1983). Although plaintiffs attempt to distinguish Acme and other cases applying the law of the decedent’s domicile to determine whether a right of publicity exists, Acme appears to be in line with the general rule. As McCarthy explains: At first glance, the Elvis Presley and Marx Productions cases and their progeny seem contrary to other Right of Publicity conflicts cases in that Presley and Marx look to the law of the domicile of the person whose rights are asserted. But in fact, what distinguishes these cases is that they were searching for the appropriate law to apply to answer the question of whether the Right of Publicity was a property right included in the estate of the deceased persons. The traditional rule ... for determining the testamentary ... disposition of personal property is to look to the law of the decedent’s domicile at the time of death.... Viewed in this light, [such cases] occupy a distinct category of conflicts law applicable only to [the] determination of what property is includable in a decedent’s estate. It makes sense to apply the law of decedent’s domicile to such an issue in order to avoid having the post mortem Right of Publicity viewed as “property” in the courts of one state and not in another as to the estate of the same deceased person. McCarthy, Rights of Publicity and Privacy, § 11.3[D][3][c]. The traditional common law rule embodied in Civil Code § 946 dictates that personal property is generally controlled by the law of a decedent’s domicile at the time of his or her death. See Estate of Moore, 190 Cal.App.2d 833, 842, 12 Cal.Rptr. 436 (4th Dist.1961). This common law rule, “sometimes called the maxim mobilia sequuntur personam, has been recognized uniformly throughout California’s history.” Id.; see also Delaware v. New York, 507 U.S. 490, 503, 113 S.Ct. 1550, 123 L.Ed.2d 211 (1993) (noting common law rule that intangible personal property is found at the domicile of the owner). Thus, unless the general rule is inapplicable, whether a right to publicity in Princess Diana’s name and likeness passed to her Estate is a question controlled by the law of her domicile at the time of her death: Great Britain. Section 946 provides an exception to the general rule where there is “law to the contrary, in the place where personal property is situated[.]” The exception is applicable, however, only when contrary law represents the Legislature’s intent that the common law rule not apply in that context. Id. As the Nolan court explained: “The obvious meaning of [§ 946] is that personal property is governed by the law of the domicile of its owner, unless a general or specific law where the property is situated provides that the law of the domicile shall not govern.” Nolan, 135 Cal.App.2d at 19, 286 P.2d 899 (citations omitted). Where property is deemed to be situated in California, the law to the contrary may be another provision of California law. Id. At first glance, it appears that the first step in determining whether the § 946 exception applies is to resolve where the property at issue is situated. Of course, § 946 itself provides the general rule that personal property is situated at the domicile of the owner. As a result, the exception appears to make sense only where there is a reason to assign the “situs” of the property based on factors other than the owner’s domicile. Such a reason will necessarily be embodied in law contrary to the general rule that the domicile controls. To determine whether the exception applies, then, the Court necessarily conflates the two-part inquiry into where the property is “situated” for purposes of the exception and whether there is law to the contrary in that forum. The task is made simple by assuming, for purposes of assessing whether there is law to the contrary, that the general rule does not apply and that the property is situated in California as plaintiffs contend. Plaintiffs first rely on a number of California cases considering § 946 in the context of disputes involving jurisdiction over personal property. In a divorce proceeding involving jurisdiction over proceeds from a pension plan, the California Supreme Court explained: An intangible, unlike real or tangible personal property, has no physical characteristics that would serve as a basis for assigning it to a particular locality. The location assigned to it depends on what action is to be taken with reference to it. Waite v. Waite, 6 Cal.3d 461, 467, 99 Cal.Rptr. 325, 492 P.2d 13 (1972), superseded by statute .on other grounds as stated in In re Marriage of Carnall, 216 Cal.App.3d 1010, 1019, 265 Cal.Rptr. 271 (4th Dist.1989); see also American Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 605 (1993) (applying Waite rule in case involving jurisdiction to garnish wages). In Waite the purpose of assigning the situs of the pension rights at issue was to establish jurisdiction to award those rights on dissolution of the marriage. Waite, 6 Cal.3d 461, 99 Cal.Rptr. 325, 492 P.2d 13. Likewise, in American Standard the purpose of assigning the situs of the wages at issue was to determine the appropriate jurisdiction in which to garnish them. American Standard, 494 N.W.2d at 605. Where the issue is whether the court has jurisdiction in rem over personal property, the fact that the property owner was . domiciled in a particular state is not sufficient to give that state jurisdiction over the property. Waite, 6 Cal.3d at 461, 99 Cal.Rptr. 325, 492 P.2d 13. Instead, California courts determine whether jurisdiction in rem is available by looking to the totality of the contacts with each state and by considering how those contacts influence the overarching question of how to ensure fair play and substantial justice. Id. Neither Waite nor American Standard involved intangible personal property devised by will. Here, the purpose of assigning a situs to the asserted right of publicity is to determine whether that right was included in the personal property devised by Princess Diana to her Estate. Consequently, no property exists until the choice of law question is answered. This is quintessentially the type of situation in which the general rule of § 946 is meant to apply because looking, to the law of the domicile ensures that the property right will not be recognized as part of the Estate by some jurisdictions and not by others. The rule articulated in Waite is tailored to a concern not present in this case: namely, which court can properly assert jurisdiction in rem over existing property rights to resolve a dispute about their disposition. Even assuming that the right of publicity in Princess Diana’s name and likeness is situated in California for purposes of the § 946 analysis, plaintiffs present no law contrary to the general rule that the law of the decedent’s domicile governs with respect to personal property. Certainly, Waite and its progeny do not suggest that the California Legislature intended to abrogate § 946 in the context of intangible property devised by will in a foreign jurisdiction. Although § 990 was enacted long after § 946, nothing in § 990 suggests that the California Legislature intended to exempt that section from the general rule that the law of a decedent’s domicile governs questions regarding what property is included in a decedent’s estate. Had it intended to create such an exception, the Legislature could easily have included a choice of law provision indicating that California law dictates whether the right of publicity is a property right included in the estate of a deceased person. Thus, generally speaking, § 990 does not constitute law to the contrary that might vitiate the general choice of law rule set forth in § 946. More specifically, plaintiffs argument that their right of publicity is located in California because the document ostensibly embodying the right — the registration form required under § 990 — is located in California is not contrary to the general rule that the law of a decedent’s domicile controls with respect to personal property. Nothing in § 990 suggests that the registration scheme is intended to function as a means of locating the situs of intangible property rights in California. Moreover, the statute provides no means by which claims are to be verified and is not itself a negotiable instrument. Under such circumstances, the registration form is not an embodiment of the right. To the contrary, registration under § 990 simply provides public documentation of an asserted claim for the benefit of potential disputants and licensees. See McCarthy, Rights of Publicity & Privacy, § 6.4[f][6][b]. Consequently, the registration provision of § 990 does not constitute law to the contrary within the meaning of § 946. Finally, plaintiffs’ suggestion that their asserted entitlement to control commercial exploitation of Princess Diana’s likeness is an interest in a-“right to publicity claim” and, therefore, a “chose in action” governed by California law begs the very question at issue by assuming a priori that plaintiffs have a claim under § 990. Likewise, the rule that a debt has its situs at the domicile of the debtor is inapplicable here because plaintiffs have not established the existence of a debt. Cf. In re Waits’ Estate, 23 Cal.2d 676, 146 P.2d 5 (1944) (cause of action for wrongful death had situs where administrator was appointed to bring suit); Waite, 6 Cal.3d at 467-68, 99 Cal.Rptr. 325, 492 P.2d 13 .(where issue is jurisdiction to compel obligor to pay one claimant and not another, situs of debt or claim is any state where personal jurisdiction .over debtor is available). In any event, even if California were the situs of the property, the law of Great Britain would control because no California law provides that the law of the decedent’s domicile should not apply. See Nolan, 135 Cal.App.2d at 19, 286 P.2d 899. In Moore, the Court considered whether distribution of personal property situated in California was governed by the law of decedent’s domicile, Florida, or by California law. Moore, 190 Cal.App.2d at 842, 12 Cal.Rptr. 436. Finding that former California Probate Code § 26 was not in conflict with the traditional rule stated in Civil Code § 946, the court concluded that “the disposition of intangible personal property situated in California is controlled by the law of the [decedent’s] domieile[.]” Id. at 843, 12 Cal.Rptr. 436 (considering bank accounts in California to be “intangible personal property”). Thus, even if the intangible property at issue — the post-mortem right of publicity in Princess Diana’s name and likeness — were situated in California, the law of Great Britain would apply. Cases applying California Civil Code § 3344, which governs a living person’s right of publicity in his or her own identity, have not addressed § 946, and the Court need not consider the relationship between § 3344 and the property choice of law statute. Sections 3344 and 990 are not parallel in all respects, and rules adopted with respect to one section must be evaluated in light of the statutory language of the other before they, can be applied wholesale. Nonetheless, it is worth noting that cases based on publicity rights under § 3344 have typically selected the law of the property owner’s domicile when resolving choice of law questions under California’s governmental interests test. See Midler, 849 F.2d at 463; Fleury v. Harper & Row Publishers, Inc., 698 F.2d 1022 (9th Cir.1983); Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821, 825-26 (9th Cir.1974); Page v. Something Weird Video, 908 F.Supp. 714, 716 (C.D.Cal.1995). The courts in Midler, Motschenbacher, Fleury, and Page each relied upon the celebrity’s domicile as the primary factor in selecting the governing law. Moreover, application of § 946 would have resulted in the same outcome in each of the cases cited because each plaintiff was a California resident. Cases applying the choice of law rules of other fora have no bearing on the outcome under California law. For example, in Bruce Miner, the First Circuit concluded that, under Massachusetts law, it was unnecessary to fit the right of publicity into one category— Tort, Property, Contract, etc. — because the “most significant relationship” analysis allows for greater flexibility than single factor choice of law analysis. Bruce Miner, 757 F.2d at 442-43. While that court considered as one factor in the analysis the domicile of the person whose name or likeness was allegedly being exploited, Massachusetts has no law parallel to California Civil Code § 946, which dictates that domicile is dispositive. Id. at 445-46 (rejecting rule based on performer’s domicile as unworkable and confusing, in part because of uncertainty created for foreign performers doing business in the United States). Closer to home, the district court in Joplin applied Washington choice of law rules and concluded that California local law governed because the right of publicity is a property right, Janis Joplin was domiciled in California, and Joplin’s right of publicity descended to her devisees in California. Joplin, 795 F.Supp. at 350. Once again, although the court in Joplin relied heavily on the law of the decedent’s domicile, California choice of law rules were not employed. Cases applying choice of law rules not parallel to California’s rules are of little use in our analysis, except insofar as they support the conclusion that domicile is at least an important, if not dispositive, consideration in selecting the law applicable to a right of publicity. Although there is no indication in § 990 that the legislature intended to limit the post-mortem right of publicity to California domiciliaries, the statute clearly identifies the right as a property right, and § 946 governs choice of law questions involving personal property. As the above discussion demonstrates, under California’s choice of law rules, the law of the decedent’s domicile governs whether a right of publicity is included in the decedent’s estate. As a result, the existing statutory scheme permits only California domiciliaries, and perhaps domiciliar-ies of other states that recognize a right of publicity, to devise a right of publicity to their heirs under § 990. Nonetheless, in light of the Court’s conclusions that the law of Great Britain governs and that British law dictates that the Estate does not include a right of publicity, the Court need not consider what law governs the asserted claim for infringement of the right of publicity. See Acme, 711 F.2d at 1541. For the foregoing reasons, the Third Claim for Relief is properly dismissed. 3. First Claim: False Designation of Origin Section 43(a) of the Lanham Act provides that: Any person who, on or in connection "with any goods or services, or any container for goods, uses in commerce 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— (A) 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, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin of her or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a). As the Ninth Circuit has explained it, § 43(a) provides two bases for liability: “(1) false representations concerning the origin, association or endorsement of goods or services through the wrongful use of another’s distinctive mark, name, trade dress or other device (‘false association’), and (2) false representations in advertising concerning the qualities of goods or services (‘false advertising’).” Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1108 (9th Cir.1992) (citations omitted). Here, plaintiffs assert a false endorsement claim as their First Claim for relief and a false advertising claim as their Fourth Claim for relief. The Court deals with the latter claim, separately below. A celebrity false endorsement claim is cognizable under § 43(a). Id. A false endorsement claim based on the unauthorized use of a celebrity’s identity is a type of false association claim for it alleges the misuse of a trademark, i.e., a symbol or device such as a visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiffs sponsorship or approval of the product. Waits, 978 F.2d at 1110. Thus, where a celebrity plaintiff asserts a false endorsement claim, the “mark” at issue is “the celebrity’s persona and the strength of the mark refers to the level of recognition the celebrity enjoys.” Wendt v. Host Int’l, Inc., 125 F.3d 806, 812 n. 1 (9th Cir.1997). The “ ‘goods’ concern the reasons for or the source of the plaintiffs fame.” White, 971 F.2d at 1400. A false endorsement claim is available where defendants’ conduct has allegedly created “a likelihood of confusion as to whether plaintiffs were endorsing [defendants’] product.” Wendt, 125 F.3d at 812. All other things being equal, it will often be easier for a plaintiff to prove “identifia-bility” infringement of the right of publicity than to prove “likelihood of confusion” infringement of a trademark right.... As Judge Nies observed: “There may be no likelihood of such confusion as to the source of the goods even under a theory of ‘sponsorship’ or ‘endorsement,’ and, nevertheless, one’s right of privacy, or the related right of publicity, may be violated.” McCarthy on Trademarks, § 28:12 at 28-15 (quoting University of Notre Dame Du Lac v. J.C. Gourmet Food Imports Co., 703 F.2d 1372, 1376 (Fed.Cir.1983)). To assess likelihood of confusion, courts in the Ninth Circuit consider the Sleekcraft factors: (1) the strength of the plaintiffs mark; (2) relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) likely degree of purchaser care; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product lines. Wendt, 125 F.3d at 812 (applying AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir.1979)). This list of factors is not exhaustive and is not intended to be applied as a “mechanistic formula.” Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1404 (citations and internal marks omitted), cert, dismissed, Penguin Books USA, Inc. v. Dr. Seuss Enterprises, — U.S. -, 118 S.Ct. 27, 138 L.Ed.2d 1057 (1997). “Other variables may come into play depending on the particular facts presented.” Id. As the nature of the factors makes clear, the “ ‘likelihood of confusion’ standard is predominantly factual in nature.” Id. Defendants argue no consumer would reasonably believe that the Franklin Mint’s advertisements and products derived from or were authorized by Princess Diana, her Estate or the Fund. Similar arguments have met with mixed success in other celebrity endorsement cases. In Wendt, the Ninth Circuit held that where a jury could reasonably conclude that most factors weigh in a plaintiffs favor, summary judgment on the issue of likelihood of confusion was inappropriate. Id.; see also Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 413 (9th Cir.1996) (holding Lanham Act claim based on GM’s use of plaintiffs former name, Lew Aleindor, should go to jury). On the other hand, likelihood of confusion may be resolved as a matter of law on summary judgment where “the court is satisfied that the products or marks are so dissimilar that no question of fact is presented.” Pirone v. Mac-Millan, Inc., 894 F.2d 579, 584 (2d Cir.1990) (holding commercial use of photographs of Babe Ruth did not indicate origin or make representation of sponsorship and granting-summary judgment for defendants where plaintiff devisees essentially asserted trademark in Babe Ruth’s image and likeness) (citations omitted); see also, Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 833-34 (6th Cir.1983) (affirming district court conclusion, after bench trial, that mark “Here’s Johnny” was not so strong that its use for other goods should be foreclosed). Regardless of the test to be applied at summary judgment, whether defendants’ use of Princess Diana’s name and likeness is likely to cause confusion as to the origin, sponsorship or approval of the Franklin Mint’s goods by Princess Diana, her Estate or the Fund cannot be resolved on a motion to dismiss. Plaintiffs allege that defendants are falsely and misleadingly implying an endorsement, association or affiliation with Princess Diana, her Estate or the Fund by using Princess Diana’s name and likeness, characterizing purchase of Franklin Mint products as a way to commemorate Princess Diana, referring to Princess Diana’s charitable activities, and making misleading statements about the Franklin Mint’s charitable giving in tribute to Princess Diana. In light of these allegations, the issue of likelihood of confusion cannot be resolved based on the pleadings. Raising a more complicated and novel question, defendants next assert that because British law governs the existence of a right of publicity, Princess Diana’s name and likeness are in the public domain, and plaintiffs cannot state a claim for false endorsement based solely on allegations that defendants used her name and likeness. Hypothetically modifying the facts presented in Waits, defense counsel suggested at oral argument that if Waits’ voice had been in the public domain, the Ninth Circuit would not have concluded that a claim for false endorsement based on Frito-Lay’s use of a singer mimicking Waits’ voice in advertisements was cognizable under § 43(a). See Waits, 978 F.2d at 1108-1111 (upholding jury verdict on § 43(a) claim against Frito-Lay, Inc.). Instead, counsel contends, where relevant aspects or markers of the celebrity’s persona are in the public domain, plaintiffs must allege some confusing or misleading representation regarding endorsement beyond mere use of those aspects of the celebrity’s persona. Distilled to its essence, defendants assert that one cannot state a claim for false endorsement under the Lanham Act unless one retains publicity rights in the celebrity’s persona. In light of the Court’s ruling that plaintiffs cannot state a claim for infringement of a right of publicity under California Civil Code § 990 because British law applies to determine whether such a right is part of the Estate, and because Britain does not recognize a post-mortem right of publicity, defendants appear to be correct that Princess Diana’s persona is “in the public domain” to the extent that the absence of a right of publicity relinquishes the celebrity persona to the public domain. The absence of a right of publicity, however, does not necessarily confer upon the public a general right to use the celebrity’s persona. Thus, while California law might not provide a right of publicity, the absence of that right does not, in and of itself, establish that plaintiffs cannot state a claim under federal law. Defendants have not suggested that British law applies if it conflicts with protections provided under the Lanham Act. Consequently, neither the absence of a state law right of publicity nor the fact that Princess Diana’s name and likeness may well be “in the public domain” in Britain constitutes a defense to a cognizable claim under § 43(a) of the Lanham Act. One final issue presents itself with respect to plaintiffs’ First Claim for relief. Plaintiffs counsel clarified at oral argument that their § 43(a) false designation of origin and false endorsement claim is based not on the fame of the Estate or the Fund, but on the value of Princess Diana’s persona, which plaintiffs contend passed to her Estate. While it is well-established that a trademark is a trans-ferrable property right, see McCarthy on Trademarks, 2:14 at 2-32 (“As a ‘property right,’ marks can be alienated like any piece of property.”), neither the availability nor the parameters of a false endorsement claim brought by the estate of a celebrity have been established. Defendants do not argue directly that a celebrity mark is not a descendible right under § 43(a). They assert, however, that a false endorsement claim brought by the Estate and the Fund must be based on allegations that defendants’ advertisements and products falsely suggest the plaintiffs’ endorsement, not Princess Diana’s endorsement, and that the Estate and the Fund must therefore allege and establish that they are famous in their own right. Neither party cites any authority on this point; nor do the parties present reasoned arguments based on other areas of the law or policy considerations. At the outset, it appears to the Court that one could theoretically assert a claim for false endorsement by a deceased celebrity (e.g., advertising might falsely suggest a particular product was endorsed by the celebrity before his or her death), and that plaintiffs have adequately alleged that defendants’ advertising and products are likely to falsely suggest Princess Diana’s endorsement of defendants’ products. Nonetheless, it seems unlikely that the public would be confused as to whether Princess Diana endorsed the Franklin Mint’s products in light of her premature and unexpected death. Presumably recognizing the fragility of such a claim, plaintiffs focus almost exclusively on their contention that defendants are falsely implying that plaintiffs endorse defendants’ products. With respect to plaintiffs’ claim that defendants’ use of Princess Diana’s name and likeness falsely suggests plaintiffs’ endorsement, the real question is not, as defendants would have it, whether § 43(a) protects the rights of devisees of a deceased celebrity, but whether use of a particular deceased celebrity’s persona is likely to cause confusion “as to the origin, sponsorship, or approval of [the defendants’] goods, services, or commercial activities by another person [,]” here, the Estate or the Fund. 15 U.S.C. § 1125(a) (emphasis added). By using the term “another person,” Congress selected language broad enough to encompass a claim by a deceased celebrity’s Estate or by any celebrity’s as-signee. The provision that any person likely to be damaged may bring a claim under § 43(a) is similarly expansive and provides another indication of Congressional intent to protect any person injured by a false suggestion of celebrity endorsement, not just the celebrity. When read in conjunction with the relevant statutory language, the Ninth Circuit’s discussion of standing in Waits also supports the conclusion that the estate of a deceased celebrity has standing to bring a claim for false endorsement based on use of the celebrity’s persona. A person has standing to assert a claim under § 43(a) “where the interest asserted by the plaintiff is a commercial interest protected by the Lanham Act.” Waits, 978 F.2d at 1108. Here, plaintiffs assert a commercial interest in preventing unauthorized use of Princess Diana’s persona because such use will allegedly create confusion concerning plaintiffs’ endorsement of the Franklin Mint’s products. The fact that plaintiffs ultimately intend to use their profits for charitable purposes is immaterial; they assert a commercial interest within the meaning of § 43(a). In short, plaintiffs satisfactorily allege a false endorsement claim based on defendants’ use of Princess Diana’s persona. Defendants argue, in the alternative, that even if the Estate and the Fund are entitled to assert a claim under § 43(a) based on Princess Diana’s famous persona rather than on their own fame, the “Court should find that the mere depiction of a deceased celebrity does not imply the celebrity’s heirs’ endorsement.” Reply at 10. Of course, plaintiffs allege more than the mere depiction of Princess Diana. Plaintiffs allege that the Fund was established by executors of the Estate to ensure that donations in honor of Princess Diana are used to carry on her charitable works and that use of her name and likeness, in conjunction with references to Princess Diana’s charitable activity, tributes to Princess Diana, and the Franklin Mint’s charitable giving in Princess Diana’s name, create a likelihood of confusion concerning Princess Diana, the Estate and/or the Fund’s association with or sponsorship of the Franklin Mint and its products. Because likelihood of confusion involves a factual inquiry, defendants’ motion to dismiss the First Claim for relief is denied. 4. Second Claim: Federal Trademark Dilution Defendants also move to dismiss plaintiffs’ Second Claim for relief from trademark dilution under the Federal Trademark Dilution Act, 15 U.S.C. § 1125. Plaintiffs premise their dilution claim on § 1125(c)(1), which provides that the owner of a famous mark shall be entitled, subject to principles of equity and upon such terms as the court deems reasonable, to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark[.] 15 U.S.C. § 1125(c)(1). Dilution is defined as “the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake or deception.” 15 U.S.C. § 1127; see also Panavision Int’l L.P. v. Toeppen, 945 F.Supp. 1296, 1301 (C.D.Cal.1996) (“Trademark dilution laws protect ‘distinctive’ or ‘famous’ trademarks from certain unauthorized uses of the marks regardless of a showing of competition or likelihood of confusion.”), aff'd, Panavision Int’l L.P. v. Toeppen, 141 F.3d 1316 (9th Cir.1998). To prove a violation of the Federal Trademark Dilution Act, a plaintiff must show that (1) the mark is famous; (2) the defendant is making a commercial use of the mark; (3) the defendant’s use began after the mark became famous; and (4) the defendant’s use of the mark dilutes the quality of the mark by diminishing the capacity of the mark to identify and distinguish goods and services. Panavision, 141 F.3d at 1324. The Federal Trademark Dilution Act lists eight non-exclusive factors a court may consider in determining whether a mark is distinctive and famous. The statutory factors are: (A) the degree of inherent or acquired distinctiveness of the mark; (B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used; (C) the duration and extent of advertising and publicity of the mark; (D) the geographical extent of the trading area in which the mark is used; (E) the channels of trade for the goods or services with which the mark is used; (F) the degree of recognition of the mark in the trading areas and channels of trade used by the marks’ owner and the person against whom the injunction is sought; (G) the nature and extent of use of the same or similar marks by third parties; and (H) whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register. 15 U.S.C. § 1125(c)(1). In general, personal names are not inherently distinctive marks and can be protected as trade or service marks only where they have acquired secondary meaning. McCarthy on Trademarks, § 13.2 at 13-3. Secondary meaning grows out of long association of the name with the business, and thereby becomes the name of the business as such; is acquired when the name and business become synonymous in the public mind; and submerges the primary meaning of the name as a word identifying the person, in favor of its meaning as a word identifying that business. Id., § 13.2 at 13-5 (quoting Visser v. Macres, 214 Cal.App.2d 249, 29 Cal.Rptr. 367 (4th Dist.1963)). Thus, to state a claim under the Federal Trademark Dilution Act for service mark infringement, a plaintiff must allege that the personal name asserted as a mark has acquired secondary meaning such that the name is synonymous in the public mind with the service provided by the plaintiff. “Implicit in the concept of a trade mark ‘is a requirement that there be direct association between the mark ... and the services specified in the application, i.e., that it be used in such a manner that it would be readily perceived as identifying such services.’ ” Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 906-07 (9th Cir.1995). In SRF Church, the Ninth Circuit affirmed a trial court decision granting summary judgment for defendant where plaintiff failed to raise a genuine issue of fact concerning whether plaintiff had used the name of Paramahansa Yogananda, the guru followed by both plaintiff and defendant churches, in a service mark manner. Id. It follows that to state a claim for service mark infringement, one must allege that the personal name has been used as a service mark. Here, plaintiffs allege that “Princess Diana’s name and image have been intensively and extensively advertised and promoted throughout the world in connection with her charitable activities, and as a result of this advertising and promotion, the name and image have come to mean and are recognized in world wide trading areas and channels of trade as distinctive marks which identify the source of the charitable activities of Diana, Princess of Wales.” FAC ¶ 24. Moreover, plaintiffs specifically allege that their asserted marks are “famous and distinctive within the meaning of 15 U.S.C. § 1125(c)(1) and 1127.” FAC ¶ 25. Plaintiffs need not, as defense counsel asserted at oral argument, “use the magic words ‘secondary meaning1 ” to state a claim for trademark dilution. The Ninth Circuit has explicitly held that well-known authors and characters can have such established primary identifications that no secondary meaning is possible, at least in the field from which the person’s fame derives. Chamberlain v. Columbia Pictures Corp., 186 F.2d 923, 925 (9th Cir.1951). In Chamberlain, Mark Twain’s heirs attempted to prevent the use of his name on a motion picture loosely drawn from a Twain story. Id. The district court dismissed for failure to state a claim, and plaintiffs appealed. Id. at 923. The Circuit’s analysis controls here and is worth citing at length: Appellants do not have a right to the exclusive use of the name ‘Mark Twain.’ It is not alleged that appellee is selling the story as appellants’ story; their complaint is that the association of the name ‘Mark Twain’ with a ‘corny’ production injures appellants’ chances to sell other works of that eminent author by detracting from his fame as such. To our minds this is a nebulous, far-fetched conclusion. We could almost take judicial notice of the fact that the fame of ‘Mark Twain’ cannot be so easily marred. Of course we realize that a determination of the weight of evidence that might be produced is not our function here. We mention it merely to point up the weakness of the allegations made.... Appellants do not have a monopoly. They own only a portion of the extant works of Mark Twain. In order to entitle appellants to the relief sought it would be necessary for them to allege that they have an exclusive right to the use of the story in question ... We think the name Mark Twain is incapable of acquiring a secondary meaning in connection with literary property. The name Mark Twain, [from] a literary standpoint, indicates only the writings of Samuel L. Clemens, which is a primary meaning. Id. at 925. In a recent unpublished decision in a similar case, Judge Wilken of the Northern District of California held: “[assuming that the mark HORATIO ALGER is descriptive as applied to an exercise to debunk the Horatio Alger myth, it is protectible only if it has acquired a secondary meaning.” Cano v. A World of Difference Institute, 1996 WL 371064 (N.D.Cal.1996). Following Chamberlain, Judge Wilken allowed plaintiff to amend the complaint, but commented that just as the name Mark Twain is incapable of acquiring secondary meaning in connection with literary property, the name Horatio Alger has a strong primary meaning referring to the author himself. Id. at * 18. Similarly, Diana, Princess of Wales has such a clear primary meaning as a description of the person herself that it seems unlikely that any secondary meaning could be acquired in her name, at least in the context of fund-raising for charitable services similar to those she was allegedly famous for endorsing. Nonetheless, whether Princess Diana’s name has acquired secondary meaning indicative of the source of her charitable works is best resolved on a motion for summary judgment. Taking the allegations of the complaint as true, as we must on a motion to dismiss, the Court finds plaintiffs state a claim for trademark dilution under § 1125(c)(1) by alleging that (1) their marks, “Diana Princess of Wales” and “Diana Princess of Wales Memorial Fund,” are famous; (2) defendants are using the marks commercially; (3) defendants’ use commenced after the mark became famous; and (4) defendants’ use of the marks dilutes their quality by diminishing the capacity of the marks to identify and distinguish plaintiffs’ charitable services. See Panavision, 141 F.3d at 1324; FAC ¶ 26. Consequently, defendants’ motion to dismiss plaintiffs’ Second Claim for relief is denied. 5. Fourth Claim: False Advertising To state a claim for false advertising under § 43(a) of the Lanham Act, a plaintiff must allege: (1) a false statement of fact by the defendant in a commercial advertisement about its own or another’s product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir.1997) (citations omitted). To establish falsity under § 43(a), a plaintiff must show either that the advertising was literally false or that it was literally true but likely to mislead or confuse consumers. Id. Where a statement is not literally false and is only misleading in context, proof that the advertising actually conveyed the implied message and thereby deceived a significant portion of the recipients is critical. William H. Morris Co. v. Group W, Inc., 66 F.3d 255, 258 (9th Cir.1995). If a defendant intentionally misled consumers, the Court may presume consumers were in fact deceived, and defendant has the burden of demonstrating otherwise. Id. Public reaction is typically tested through the use of consumer surveys. Southland Sod Farms, 108 F.3d at 1140. Here, plaintiffs adequately allege that defendants’ advertisements falsely imply plaintiffs’ endorsement, Princess Diana’s endorsement, and/or that defendants will donate proceeds to the Fund. See First Amended Complaint, ¶¶ 36, 38. Accordingly, defendants’ motion to dismiss the Fourth Claim for relief is denied. 6. Fifth Claim: State Unfair Competition and False and Misleading Advertising Finally, defendants move to dismiss plaintiffs’ claims for violation of California Business & Professions Code §§ 17200 and 17500, et seq. Plaintiffs contend the public is and will continue to be confused by defendants’ claim that proceeds from the sale of Franklin Mint commemorative items related to Princess Diana will go to “Diana’s favorite charities.” According to plaintiffs’ allegations, such advertising creates confusion by implying that defendants will donate the profits to the Fund. Under the California Unfair Business Practices Act (“UBPA”), unfair competition includes “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising[.]” Cal. Bus. & Prof.Code § 17200. The statute also contains a provision prohibiting false advertising. Cal. Bus. & Prof. Code § 17500. Section 17500 bars dissemination of any statement regarding the sale of personal property “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” Id. Any violation of the false advertising law necessarily violates the unfair competition law. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.1995) (citing Committee on Children’s Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 197 Cal.Rptr. 783, 673 P.2d 660 (1983)). To state a claim under the UPBA, one need only show that “members of the public are likely to be deceived.” Id. (citation omitted). A claim based on false or misleading advertising and unfair business practices “must be evaluated from the vantage of a reasonable consumer.” Id. Here, plaintiffs state a claim under California law for false advertising and unfair business practices based on their allegations that defendants’ advertisements misleadingly imply that the Franklin Mint products are endorsed by or affiliated with Princess Diana, her Estate or the Fund. In addition, plaintiffs satisfactorily allege that defendants advertisements misleadingly suggest proceeds will be donated to the Fund. Whether consumers have been or will be misled is a factual question that cannot be resolved on a motion to dismiss. Accordingly, defendants’ motion to dismiss the Fifth Claim for relief is denied. B. Motion to Strike Before filing a responsive pleading, a party may move to strike “any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed. R.Civ.P. 12(f). “ ‘Immaterial’ matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. [ ] ‘Impertinent’ matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Fantasy Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993) (citations omitted), rev’d on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). While motions to strike are typically disfavored, a motion is well-taken where “it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” LeDuc v. Kentucky Central Life Ins. Co., 814 F.Supp. 820, 830 (N.D.Cal.1992). 1. “Vultures Feeding on the Dead” Defendants move to strike plaintiffs’ allegation that defendants are “[l]ike vultures feeding on the dead.” See First Amended Complaint, ¶ 1. This language is immaterial and impertinent as it has no bearing whatsoever on the legal issues presented. Princess Diana’s death caused an emotional outpouring around the world. This action will undoubtedly continue to be the subject of media scrutiny, and there is no need to couch the material allegati