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Inc. v. Interactive Media Corporation

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

June 10, 2018

3LIONS PUBLISHING, INC., Plaintiff,
v.
INTERACTIVE MEDIA CORP. d/b/a KANGURU SOLUTIONS, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court in consideration of Defendant Interactive Media Corp. d/b/a Kanguru Solutions' Motion to Dismiss the Complaint for Failure to State a Claim, or in the Alternative for Lack of Personal Jurisdiction (Doc. # 11), filed on March 4, 2019. Plaintiff 3Lions Publishing, Inc. responded on March 10, 2019. (Doc. # 13). For the reasons that follow, the Motion is denied.

         I. Background

         3Lions Publishing, Inc. (3LP) is a Florida corporation “that provides . . . information, solutions, and guidance to the healthcare industry regarding the implementation of safeguards to comply with the Health Insurance Portability and Accountability Act (HIPAA).” (Doc. # 1 at 1). Interactive Media Corp. (IMC) is a “Massachusetts Corporation that describes itself as ‘an industry leader in providing secure hardware encrypted USB solutions, quality portable data storage, fully-integrated secure remote management, duplication equipment to organizations and businesses around the world.'” (Id. at 1-2). The Complaint alleges that IMC “blatantly committed trademark infringement on its website.” (Id. at 3).

         On August 25, 2017, 3LP received a federal trademark registration from the U.S. Patent and Trademark Office for the phrase “HIPAA Survival Guide” in International Classes 9, 35, and 42. (Doc. # 1-3). That registration lists a “first use” date of August 31, 2009, and “first use in commerce” dates of March 15, 2013, as to Class 35 and March 16, 2016, as to Classes 9 and 42. (Id.).

         3LP alleges that IMC infringed on the trademark when IMC used the phrase “HIPAA Survival Guide” within a blog post dated October 31, 2012, on its website “to sell its healthcare compliance products and services” for which “it receives a financial benefit.” (Id. at 3). The blog post is entitled “HIPAA Survival Guide” and contains four sentences. (Doc. # 1-2). The first sentence states, “Healthcare Informatics has a link to a HIPAA Survival Guide.” (Id.). The remaining three sentences reference IMC/Kanguru-branded products that may help healthcare companies comply with HIPAA requirements. (Id.).

         3LP further alleges that IMC's use of 3LP's trademark on IMC's website “attract[s] larger amounts of internet traffic, often by misleading consumers into believing [IMC] [is] associated, affiliated with, or authorized by 3LP.” (Doc. # 1 at 3). Further, 3LP indicates that it “never entered into any agreement with [IMC] that would permit [IMC] to adapt or otherwise use the [trademark].” (Id.). 3LP also alleges that IMC's “acts of trademark infringement were willful and deliberate.” (Id. at 4).

         3LP initiated this action on January 28, 2019, asserting two claims under the Lanham Act for false designation of origin and trademark infringement. (Doc. # 1). IMC moved to dismiss on March 4, 2019. (Doc. # 11). 3LP has responded (Doc. # 13), and IMC has replied. (Doc. # 26). The Motion is ripe for review.

         II. Legal Standard

         On a motion to dismiss pursuant to Rule 12(b)(6), this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. See Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations omitted). Courts are not “bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “The scope of review must be limited to the four corners of the complaint” and attached exhibits. St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002).

         Additionally, motions to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) are governed by a two-part analysis. First, the Court determines whether the plaintiff has alleged facts sufficient to subject the defendant to the forum state's long-arm statute. Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). Second, the Court evaluates whether sufficient minimum contacts exist between the defendant and the forum state, such that jurisdiction does not offend “traditional notions of fair play and substantial justice.” Id.

         The plaintiff has the initial burden to show that the Court has personal jurisdiction over the defendant. Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002). The plaintiff must allege “sufficient facts to make out a prima facie case of jurisdiction.” Estate of Scutieri v. Chambers, 386 Fed.Appx. 951, 956 (11th Cir. 2010). Conclusory allegations are insufficient. Meier, 288 F.3d at 1269.

         Once the plaintiff establishes a prima facie case of jurisdiction, the burden shifts to the defendant to challenge those allegations. Id. If the defendant submits affidavits challenging jurisdiction, the burden then shifts back to the plaintiff to substantiate the allegations in the complaint with evidence supporting jurisdiction. Id. Ultimately, reasonable inferences are drawn in the plaintiff's favor if the evidence conflicts. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). However, any doubt about the reach of the Florida long-arm statute and the Court's jurisdiction are resolved in favor of the defendant and against jurisdiction. Gadea v. Star Cruises, Ltd., 949 So.2d 1143, 1150 (Fla. 3d DCA 2007).

         III. Analysis

         A. Personal Jurisdiction

         Although IMC first argues that the Court should dismiss 3LP's Complaint for failure to state a claim pursuant to Rule 12(b)(6), the Court's ability to exercise personal jurisdiction over IMC presents a threshold issue. See Madara, 916 F.2d at 1514 n.1 (11th Cir. 1990) (explaining that the district court should have ruled on personal jurisdictional issues before considering a request to dismiss for failure to state a claim). As such, the Court first addresses whether personal jurisdiction over IMC is proper pursuant to Florida's long-arm statute.

         1. Florida's ...


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