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March 2016 - Free Advertising

by Richard W. Millar, Jr.

Do you ever wonder what happens with your car after you trade it in? I cannot say I ever thought about it before. (Key word: “before.”)

Also, have you ever wondered about how the owners of those cars and trucks that have full body decals advertising one thing or another, take the decals off when they sell or trade in those vehicles? I have actually pondered that before, if for all of thirty seconds while my mind wandered to somewhere else.

And then there’s Mark Oberholtzer. He probably hadn’t thought much about it either, but I will guarantee you he is thinking about it now.

Or thinking about a million dollars, which is the amount he is asking in a suit against a Houston dealership.

Mr. Oberholtzer is a plumber in Texas. He had a pickup truck which had (and still has) his logo for his company Mark-1 Plumbing with his phone number, etc. According to reports, he started to remove the decals before he traded it in, but someone at the dealership told him not to because they had a better way of removing the decals without damaging the paint, which, when you think about it, sounds logical. It may even be true.

But, true or not, the dealer did not remove the decals before selling the truck.

At this point, I have to hit the “pause” button and digress. Unless your name was Mark and you were a plumber in Texas, why would you buy a truck covered with advertisements for someone else’s business? Talk about a narrow market! And why would a dealer ever think that such a truck would be marketable?

Well those imponderables will forever remain imponderable as the decals were not removed and the truck was sold and most likely resold one or more times. Just not to plumbers in Texas named Mark.

So what’s the problem you might ask? Mr. Oberholzer presumably got paid the reasonable value of his truck by way of trade-in and now he gets the benefit of free advertising whilst the truck roams Texas. He is not damaged and, indeed, may have been benefitted.

Mr. Oberholzer does not see it that way and he sued Charlie Thomas Ford, Ltd. doing business as AutoNation Ford Gulf Freeway for gross negligence, negligent misrepresentation, fraud, defamation, invasion of privacy, and deceptive trade practices, seeking, as I said, a million smackaroos.

Less than a year after the trade-in, it seems Mr. Oberholzer started receiving a “flood of calls” to his business and cell phone threatening him with all sorts of harm, including death. He and his secretary stayed away from his office for days at a time. He was visited by the FBI and Homeland Security who allegedly told him that he needed to protect himself. All because of the decals on the truck. And none of the calls were plumbing complaints.

The truck, after it was sold, did not stay in Texas. It somehow made its way to Turkey, and thence to Syria, where it was outfitted with an anti-aircraft gun in the truck bed, filled with armed fighters, and—while still fully plastered with Mark-1 Plumbing—was used by ISIS in a “promotional” video that the terrorist group posted on Twitter. The posting went viral and, every time an ISIS atrocity hits the airwaves, Mr. Oberholzer gets phone calls.

While I am not one to predict outcomes of lawsuits, I am going to go out on a limb in this case and predict that:

Charlie Thomas Ford will get rotorootered.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.

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