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Brand Ventures, Inc. v. TAC5, LLC

United States District Court, M.D. Florida, Orlando Division

April 30, 2018

BRAND VENTURES, INC., Plaintiff,
v.
TAC5, LLC, NATIONAL ENTERPRISE GROUP, LLC, JOHNATHAN CURTIS, and JOHN DOES 1-5, Defendants.

          ORDER

          PAUL G. BYRON, UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on Defendant Johnathan Curtis' Motion to Dismiss (Doc. 12), filed December 12, 2017. Plaintiff Brand Ventures, Inc. responded in opposition on December 21, 2017. (Doc. 30). Upon consideration, Defendant's motion is due to be denied.

         I. BACKGROUND[1]

         Brand Ventures, Inc. (“Brand Ventures” or “Plaintiff”) is an “internet product incubation company that builds specialized solutions for lead generation, consumer content, and direct-to-consumer e-commerce products.” (Doc. 1, ¶ 22). Plaintiff brings suit against Defendants, TAC5, LLC, National Enterprise Group, LLC (“NEG”), and Johnathan Curtis. (Id. ¶¶ 11-15). Brand Ventures offers numerous products for sale under different trademarks. With respect to the current litigation, Brand Ventures alleges it owns registered trademarks 1TAC and 1TAC TACTICAL OUTFITTERS (collectively, the “1TAC Marks”) for use with tactical flashlights and other tactical gear. (Id. ¶¶ 24-25). It also uses the mark 1HYDRO for use with portable water purifiers. (Id. ¶¶ 23-24).

         Brand Ventures markets and sells products bearing the 1TAC and 1HYDRO marks through websites it owns and various other online channels. (Id. ¶¶ 22, 26-27). The vast majority of online marketing materials consist of unique text, images and HTML code created by Brand Ventures. (Id. ¶ 30). These materials are the subject of four registered copyrights. (Id. ¶¶ 31-38).

         In 2017, Defendants began using the “TAC5” and “HYDRO5” marks to sell near-identical products. (Id. ¶¶ 39-41, 45). The TAC5 name and logo are extremely similar to Brand Ventures' 1TAC name and logo. (Id. ¶ 40). In addition to the strong resemblance in product design and packaging, Defendants launched a website (www.TAC5.com) to sell its products that copied “nearly every element and aspect of the 1TAC website and its elements.” (Id. ¶ 41). Defendants' websites copied from Plaintiff's websites: source code, photos and graphics, unique text, and a “Shopping Guide.” (Id. ¶¶ 41-47). To conceal the copying, Defendants edited 1TAC's pictures, text, and graphics, removed references to 1TAC, and replaced them with references to TAC5. (Id. ¶¶ 47-48).

         On November 10, 2017, Brand Ventures filed a four-count Verified Complaint. Count I alleges a copyright infringement claim. Count II avers a claim for trademark infringement. Count III asserts an unfair competition claim in violation of the Lanham Act. Count IV asserts an unjust enrichment claim under Florida law.

         II. STANDARD OF REVIEW

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1). Thus, in order to survive a motion to dismiss made pursuant to Rule 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         Though a complaint need not contain detailed factual allegations, mere legal conclusions or recitation of the elements of a claim are not enough. Twombly, 550 U.S. at 555. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Courts must also view the complaint in the light most favorable to the plaintiff and must resolve any doubts as to the sufficiency of the complaint in the plaintiff's favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994) (per curiam).

         III. DISCUSSION

         A. Counts I-III

         Defendant Johnathan Curtis moves to dismiss all claims asserted against him. (Doc. 12). Curtis argues first that Counts I-III should be dismissed because the Verified Complaint fails to allege sufficient facts to support individual liability. (Id. at pp. 2-4). In response, Plaintiff argues that it alleged sufficient facts to support the imposition of individual liability against Curtis pursuant to direct, contributory, and vicarious liability. (Doc. 30).

         “[A] corporate officer who directs, controls, ratifies, participates in, or is the moving force behind the infringing activity, is personally liable for such infringement without regard to piercing the corporate veil.” Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1184 (11th Cir. 1994) (per curiam). Further, “An individual, including a corporate officer, who has the ability to supervise infringing activity and has a financial interest in that activity, or who personally participates in that activity is personally liable for the infringement.” S. Bell Tel & Tel. v. Assoc. Tel. Dir. Publishers, 756 F.2d 801, ...


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