United States District Court, M.D. Florida, Orlando Division
G. BYRON, UNITED STATES DISTRICT JUDGE
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.
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.
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. ¶¶
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.
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
STANDARD OF REVIEW
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
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).
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).
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, ...