Case 1:06-cv-02076-JEC Document 14 Filed 08/21/07 Page 1 of 8
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`FILED IN CHAMBERS
`At~B~RS
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE. NORTHERN DISTRICT OF GEORGIA AU G 2 _7 2007
`ATLANTA DIVISION
`
`ByA
`
`E rk
`
`Dept,
`j *
`ISAAC A . POTTER, JR ., and Clerk
`SAMUEL POTTER,
`
`Plaintiffs,
`
`V .
`
`THE CARTOON NETWORK LP, LL-[,P,
`
`Defendant .
`
`CIVIL ACTION NO .
`
`1 :06-CV-2076-SEC
`
`O R D E R & O P I N I O N
`
`This case is presently before the Court on defendant's Motion to
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`Dismiss Plaintiffs' Amended Complaint, or Alternatively, for a More
`
`Definite Statement [9] . The Court has reviewed the record and, for
`
`the reasons set out below, concludes that defendant's Motion to
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`D i sm i ss Plaintiffs' Amended Co mplaint, or Alternat ively, for a More .
`
`Definite Statement [9] should be DENIED .
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`BACKGROUND
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`Plaintiffs are brothers who do business as "Potter Boys
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`Creations" in Orlando, Flor i da . (Am . Compl .
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`[5] at 9I 1 .) Defendant
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`is a corporation doing business throughout the Un i ted States . (Id .
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`at 9[ 2 .) On October, 10, 1995, plaintiff Isaac Potter obtained ,
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`copyright protection, registration number VAu-357-366, for drawings
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`entitled "Zodiac Knights 2000 ." (Copyright R . Attached to Pls .' Am .
`
`AO 72A
`(Fiev.8/82)
`
`
`
`FILED IN CHAMBERS
`At~B~RS
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE. NORTHERN DISTRICT OF GEORGIA AU G 2 _7 2007
`ATLANTA DIVISION
`
`ByA
`
`E rk
`
`Dept,
`j *
`ISAAC A . POTTER, JR ., and Clerk
`SAMUEL POTTER,
`
`Plaintiffs,
`
`V .
`
`THE CARTOON NETWORK LP, LL-[,P,
`
`Defendant .
`
`CIVIL ACTION NO .
`
`1 :06-CV-2076-SEC
`
`O R D E R & O P I N I O N
`
`This case is presently before the Court on defendant's Motion to
`
`Dismiss Plaintiffs' Amended Complaint, or Alternatively, for a More
`
`Definite Statement [9] . The Court has reviewed the record and, for
`
`the reasons set out below, concludes that defendant's Motion to
`
`D i sm i ss Plaintiffs' Amended Co mplaint, or Alternat ively, for a More .
`
`Definite Statement [9] should be DENIED .
`
`BACKGROUND
`
`Plaintiffs are brothers who do business as "Potter Boys
`
`Creations" in Orlando, Flor i da . (Am . Compl .
`
`[5] at 9I 1 .) Defendant
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`is a corporation doing business throughout the Un i ted States . (Id .
`
`at 9[ 2 .) On October, 10, 1995, plaintiff Isaac Potter obtained ,
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`copyright protection, registration number VAu-357-366, for drawings
`
`entitled "Zodiac Knights 2000 ." (Copyright R . Attached to Pls .' Am .
`
`AO 72A
`(Fiev.8/82)
`
`
`
`Case 1:06-cv-02076-JEC Document 14 Filed 08/21/07 Page 2 of 8
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`Compl . [5] .) On August 30, 2003, defendant aired an anima television
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`series entitled "Knights of the Zodiac ." (Statement of Facts
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`Attached to Am . Compl . [5] at S 11 .c .) Sometime later, plaintiffs
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`became aware of defendant's television program and informed defendant
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`that plaintiffs believed the television program infringed upon their
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`copyright . (Am . Compl : [5] at TT 11-14 .) Plaintiffs contend that
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`after they contacted defendant about the alleged infringement,
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`defendant sought unsuccessfully to obtain copyright and trademark
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`protection for their animated series .
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`(Id, at T 15 .)
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`At or around
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`this time, plaintiffs registered "Zodiac Knights 2000" as a trademark
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`in Indiana . l (Certificates of Trademark Registration Attached to
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`Pl .'s Am . Comps [5] .)
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`On July 18, 2006, plaintiffs filed suit pro se in Fulton County
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`court, seeking damages for copyright and trademark infringement .
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`(Ex . A to Def .'s Notice of Removal [1] .) Defendant was served with
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`notice of the lawsuit on August 1st, and removed the case to this
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`Court on August 31, 2006 .
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`(Def .'s Notice of Removal . [1] at 9191 2-3 .)
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`On September 5, 2006 defendant filed a Motion to Dismiss, or in the
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`Alternative, for a More Definite Statement [4] . On October 2, 2006,
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`plaintiffs, in lieu of responding to defendant's motion, filed an
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`1 While "Zodiac Knights 2000" was registered as a trademark in
`Indiana on March 1, 2004, after defendant first aired "Knights of the
`Zodiac," it is unclear whether plaintiffs sought trademark
`registration before or after learning of the program's existence .
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`2
`
`AO 72A
`(Rev.8/82)
`
`
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`Case 1:06-cv-02076-JEC Document 14 Filed 08/21/07 Page 3 of 8
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`Amended Complaint [5] . In li ght of the fil i ng of th i s Amended
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`Complaint, the Court denied defendant's motion wi t hou t pre j udice,
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`"as [the] Amended Complaint may [have] cure[d ] some of the defects" '
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`in the or i g i nal complaint . (Order [6] .} On October
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`19, 2006, ',
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`defendant filed a Motion to Dismiss Plaint i ffs' Amended Complaint,
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`or, Alternatively, for a More Definite Statement, wh i ch is presently
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`before the Court [9 ]
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`.
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`I .
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`Standard
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`DISCUSSION
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`A .
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`Standard for Dismissal Under Rule 12 ( b)(6)
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`Defendants have moved for dismissal pursuant to Federal Rule
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`12(b) (6) for failure to state a claim upon which relief can be
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`granted . (Def .'s Mot . to Dismiss [9] .) In ruling on defendant's
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`motion, the Court must assume plaintiffs' allegations are true and
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`construe all facts and inferences in the manner most favorable to
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`plaintiffs . Scott v . Taylor, 405 F .3d 1251, 1253 (11th Cir . 2005) .
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`Dismissal is only appropriate if plaintiffs have not pled facts
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`supporting each of the material elements of their allegations . See
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`Bell Atlantic Corp . v . Twombly, 127 S . Ct . 1955, 1969 (2007) . "The
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`rule is not designed to strike inartistic pleadings or to provide a
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`more definite statement to answer an apparent ambiguity, and the
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`analysis of a 12(b) (6) motion is limited primarily to the face of the
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`complaint and attachments thereto ."
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`Brooks v . Blue Cross & Blue
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`Shield of Fla . , Inc ., 116 F .3d 1364, 1368 (11th Cir . 1997 ) ; see FED .
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`3
`
`AO 72A
`
`
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`Case 1:06-cv-02076-JEC Document 14 Filed 08/21/07 Page 4 of 8
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`R . C i v . P . 10(c ) (written exhibits attached to a pleading are treated
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`as part of the pleading) . Add i tionally, a "pro se comp l aint
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`[is
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`held] to less stringent standards than formal plead i ngs drafted by
`
`lawyers ." Hares v . Kerner, 404 . U .S . 519, 520 (1972) .
`
`B .
`
`Standard for a More Definite Statement Under Rule 12(e)
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`Defendant moves alternatively for a more definite statement of
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`plaintiffs' claims . Pursuant to Federal Rule 12(e), defendant is
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`ent i tled to a more definite statement if pla i nt i ffs' claims are "so
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`vague or amb i guous that a [defendant] cannot reasonably be required
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`to frame a respons i ve pleading ."
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`FED . R .
`
`Civ .
`
`P . 12 (e) . For the
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`mot i on to be granted, the ambigu i ty must usually lie in "the nature
`
`of the claim or the parties against whom it i s be i ng made ."
`
`Sagan v .
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`Apple Computer, Inc., 874
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`F . Supp . 1072, 1077 (C .D . Cal . x.994) .
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`Otherw i se, discovery, not Rule 12 (e) motions, i s the proper tool for
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`determining the specifics of the claims .
`
`Id .
`
`I
`
`II . Plaintiffs' Trademark Infringement Claims
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`A .
`
`Plaintiffs ' Trademark Claims Were Not Abandoned
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`Defendant contends that plaintiffs abandoned their trademark
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`infringement claims, stating that the Amended Complaint "does not
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`contain any allegations of, or request any relief for, trademark
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`infringement ." (Def .'s Mem . in Supp . of Its Mot . to Dismiss Pls .'
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`Am . Compl ., or Alternatively, for a More Definite Statement [9] at
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`5 .)("Def .'s Mem .") The Court does not find this to be the case .
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`Though plaintiff does not include trademark infringement in one of
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`4
`
`AO 72A
`(Reu8/82)
`
`
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`Case 1:06-cv-02076-JEC Document 14 Filed 08/21/07 Page 5 of 8
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`the "Counts" of the Amended Complaint, the "Summary of Claims"
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`p l ainly states that "th i s is a civil action for infringement of
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`.
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`. a registered state trademark ." (Am . Compl . [5] .) Due to this
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`language, the . plaintiffs'
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`pro se status, and the plaintiffs'
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`scattered pleading of each of the constituent elements of trademark
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`infringement, discussed infra, the Court concludes that plaintiffs
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`have not abandoned their trademark claims .
`
`B .
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`Plaintiffs Stated a Lanham Act Claim
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`Although plaintiffs do not cite their claim as such, their
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`federal trademark infringement claim rises under Section 43(a) of the
`
`Lanham Act .
`
`Planetary Motion, Inc . v . Techsplosion, Inc ., 261 F .3d
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`1188, 1193 (11th Cir . 2001) .2 The elements of a Section 43(a) claim
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`ZSection 43(a) provides in pertinent part :
`
`(1) 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,
`
`.
`
`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 .
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`15 U .S .C . § 1125(x)
`
`5
`
`AO 72A
`(Rev.8182)
`
`
`
`Case 1:06-cv-02076-JEC Document 14 Filed 08/21/07 Page 6 of 8
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`are (1) the plaintiff had rights in the contested mark and ( 2) the
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`defendant's mark is substantially similar to the mark of the
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`plaintiff such- that consumers are likely to b e confused .
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`Lone Star
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`Steakhouse & Saloon, Inc . v . Longhorn Steaks, Inc ., 106 F .3d 35 5 , 358
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`(11th Cir . X997) . Accordingly, these are the elements that must be
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`pled to sustain a claim for trademark infringement under Section
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`43(a) .
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`See Roe v . Aware Woman Center for Choice, Inc ., 253 F .3d 678,
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`683
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`(11 Cir . 2001) (complaint must "contain allegations
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`respecting all the material elements necessary to sustain a
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`recovery .")
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`Defendant argues that plaintiffs have failed to plead five
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`elements of trademark infringement . (Def .'s Mem . [9] at 5 .)3 However,
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`as noted supra, there are only two elements a plaintiff must plead to
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`state a claim for trademark infringement . Here, the plaintiffs have
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`pled each of these elements . They allege that they obtained
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`protection for "Zodiac Knights 2000," both through "the publication
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`and sale of comic book depictions" and through the registration of
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`the mark in Indiana . (Am . Compl . [5] at 9[9[ 7-9 .) This is sufficient
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`to allege prior rights to the mark under FED . R . Civ . P . 8 . Likewise,
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`3 Specifically, defendant alleges that "the Amended Complaint
`fails to identify 1) Plaintiff's ownership of any federally-
`registered trademark, 2) whether any allegedly-infringed trademark is
`validly registered, 3) whether any alleged trademark claims are based
`on common law, state law, or federal law, 4) Plaintiffs' prior use in
`commerce of any allegedly infringed trademarks, or 5) marks adopted
`by Cartoon Network which are allegedly infringing any trademarks
`owned by Plaintiffs ." (Def .'s Mem . [9} at 5 .)
`
`6
`
`AO 72A
`(Rev 8182)
`
`
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`Case 1:06-cv-02076-JEC Document 14 Filed 08/21/07 Page 7 of 8
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`plaintiffs alleged that "defendants [sic] use is likely to cause
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`confusion," thus successfully pleading the second required element .
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`(Statement of Facts Attached to Am . Compl . [5] at S 2) . Because the
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`Court finds that plaintiffs have pled each element required to state
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`a claim for trademark infringement, defendant's motion is DENIED
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`regarding plaintiffs' Lanham Act claim .
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`C . Plaintiffs Stated a State Law Trademark Infringement
`Claim
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`In the "Summary of Claims" section of the Amended Complaint,
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`plaintiffs allege violation of an Indiana trademark, registered under
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`IND . CODE § 24-2-1-1 et seq . The elements of trademark infringement
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`under Indiana state law are substantially the same as the elements of
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`a federal claim for trademark infringement .
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`See Westward Coach Mfg .
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`Co . v . Ford Motor Co ., 388 F .2d 627 (7th Cir . 1968) . Because
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`plaintiffs successfully pled the elements of a federal trademark
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`infringement claim, see supra, they have also pled the elements of a
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`claim under Indiana state trademark law . Therefore, defendant's
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`motion to dismiss for failure to state a claim with regards to the
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`state trademark infringement claim is DENIED .
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`III .
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`Plaintiffs ' Copyright Infringement Claim
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`To state a claim for copyright infringement , plaintiffs need
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`only claim "(1) ownership of a valid copyright, and (2) copying of
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`constituent elements of the work that are original ."
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`Feist Publ'ns
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`Inc . v . Rural Tel . Serv . Co ., Inc ., 499 U .S . 340 , 361 (1991) . These
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`two elements are plainly stated in the amended complaint . Plaintiffs
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`7
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`AO 72A
`{ Rev 8182}
`
`
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`Case 1:06-cv-02076-JEC Document 14 Filed 08/21/07 Page 8 of 8
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`allege that "that they are the owners of the registered copyright
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`known as `Zodiac Knights 2000"' and that "defendant has used the
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`figures copyrighted as `Zodiac Knights 2000 .'" [Am . Compl . [5] at 9[9[
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`4-5] . Thus,_ plaintiffs have stated a claim for copyright
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`infringement sufficient to meett the liberal pleading standards of
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`Rule 8 . Accordingly, defendant's motion to dismiss for failure to
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`state a claim is DENIED with respect to plaintiff's claim for
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`copyright infringement .
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`CONCLUSION
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`For the foregoing reasons, the Court DENIES defendant's Motion
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`to Dismiss Plaintiffs' Amended Complaint, or Alternatively, for a
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`More Definite Statement [9] .
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`SO ORDERED, this ~ day of August, 2007 .
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`F
`
`JULIE E . CARNES
`UNITED STATES DISTRICT JUDGE
`
`8
`
`AO 72A
`(Rev. 8182)
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