PSI Marine, Inc. v. Seahorse Docking LLC

Filing 68

ORDER denying 36 Motion to Dismiss. For the reasons described herein, Defendant's motion to dismiss Plaintiffs' amended complaint is DENIED. Signed by Judge Sarala V. Nagala on 11/26/2024. (Lum, A)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PSI MARINE, INC., and MARK
BALUHA
Plaintiffs,
v.
SEAHORSE DOCKING LLC,
Defendant.

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3:24-CV-163 (SVN)

November 26, 2024

RULING AND ORDER ON DEFENDANT’S MOTION TO DISMISS
Sarala V. Nagala, United States District Judge.
Plaintiff PSI Marine, Inc., and Defendant Seahorse Docking LLC (“Seahorse”) are
competitors in the boat mooring products industry. PSI Marine and its President, Plaintiff Mark
Baluha, claim Seahorse is liable for trademark and copyright infringement, false advertising, unjust
enrichment, common law unfair competition, and violations of the Connecticut Unfair Trade
Practices Act in offering three of its boat mooring products. Seahorse seeks to dismiss seven of
the twelve counts of Plaintiffs’ amended complaint for failure to state a claim, relating to trademark
and copyright infringement and false advertising. For the reasons described below, the motion to
dismiss is DENIED.
I.

FACTUAL AND PROCEDURAL BACKGROUND

The amended complaint contains the following allegations, which are accepted as true for
the purpose of this motion. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
PSI Marine sells mooring products for docks and watercraft under the trademark
TIDESLIDE. Am. Compl., ECF No. 31 ¶ 7. This trademark is owned by Baluha, and PSI Marine
is the exclusive licensee of the trademark. Id. The trademark was registered in November of 2003
and is alleged to have become incontestable under Section 15 of the Lanham Act, 15 U.S.C. §

1065. Id. ¶¶ 9–10. PSI Marine is also the exclusive licensee of a registered copyright in a brochure
that includes a price guide for its TIDESLIDE product. Id. ¶ 22.
Seahorse also sells mooring products for docks and watercraft and, specifically, offers its
Sea Slide, Tide Right, and Flex Slide mooring products on its website. Id. ¶¶ 16, 18–20. Seahorse
advertises on its website that its Tide Right product contains a “patented self-adjusting fender and
cleat,” and also claimed that “Seahorse Docking offers the only adjustable Self-Leveling Docking
System!” Id. ¶¶ 86, 95. Additionally, Seahorse displays a price guide for its Sea Slide product.
Id. ¶¶ 24, 101; id. Ex. F.
PSI Marine and Baluha brought this action alleging trademark infringement in violation of
Sections 32 and 43(a) of the Lanham Act in Seahorse’s offering of its Sea Slide, Tide Right, and
Flex Slide products (Counts One through Six); false advertising for statements made on Seahorse’s
website in violation of Section 43(a) of the Lanham Act (Counts Seven and Eight); copyright
infringement of Plaintiffs’ price guide (Count Nine); unjust enrichment (Count Ten); common law
unfair competition (Count Eleven); and violation of the Connecticut Unfair Trade Practices Act,
Conn. Gen. Stat. §§ 42-110a, et seq. (Count Twelve).
Seahorse moves to partially dismiss the amended complaint on three grounds. Def.’s Br.,
ECF No. 36-1. First, Seahorse argues that Plaintiffs fail to state a claim for trademark infringement
in Counts Two, Three, Five, and Six as to Seahorse’s Tide Right and Flex Slide products. Second,
Seahorse contends that Plaintiffs fail to state a claim for false advertising in Counts Seven and
Eight, arguing that the statements made on its website were true. Finally, Seahorse argues that
Plaintiffs’ copyright claim in Count Nine fails to state a claim, as Seahorse did not copy any
protectible elements of Plaintiffs’ copyright registration.

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II.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a
case or cause of action for failure to state a claim upon which relief can be granted. When
determining whether a complaint states a claim upon which relief can be granted, highly detailed
allegations are not required, but the complaint must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility 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. at 678. This plausibility standard is not a
“probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant
has acted unlawfully.” Id. In undertaking this analysis, the Court must “draw all reasonable
inferences in [the plaintiff’s] favor, assume all well-pleaded factual allegations to be true, and
determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins.
Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation omitted).
The Court is not “bound to accept conclusory allegations or legal conclusions
masquerading as factual conclusions,” Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008), and
“a formulaic recitation of the elements of a cause of action will not do,” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). Consequently, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly,
550 U.S. at 555). Ultimately, “[d]etermining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.

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III.

DISCUSSION

The Court holds that the amended complaint states plausible trademark infringement, false
advertising, and copyright claims against Seahorse. For the reasons described below, Seahorse’s
motion to dismiss is denied.
A. Trademark Infringement (Counts Two, Three, Five, and Six)
Plaintiffs plausibly state a claim for trademark infringement in Counts Two and Three
(alleging that Seahorse’s use of Tide Right and Flex Slide violate Section 32 of the Lanham Act)
and in Counts Five and Six (alleging that Seahorse’s use of Tide Right and Flex Slide violate
Section 43(a) of the Lanham Act).
1. Legal Standard
Plaintiff brings claims under Sections 32 and 43(a) of the Lanham Act. Both prohibit the
use of another person’s mark in a manner that is “likely to cause confusion,” “to cause mistake,”
or “to deceive.” See 15 U.S.C. § 1114(1)(a); 15 U.S.C. § 1125(a). Section 32 pertains to registered
marks, see 15 U.S.C. § 1114(1)(a), and Section 43(a) pertains to any “word, term, name, symbol,
or device, or any combination thereof,” see 15 U.S.C. § 1125(a). The parties agree that the same
analysis applies to both types of claims.
The Court analyzes trademark infringement claims in two steps.

First, the Court

determines whether a plaintiff’s mark “merits protection.” Christian Louboutin S.A. v. Yves Saint
Laurent Am. Holdings, Inc., 696 F.3d 206, 216 (2d Cir. 2012). Second, the Court determines
whether a defendant’s use of a similar mark “is likely to cause consumer confusion.” Id. at 217.
Only the second step is at issue here. See Def.’s Br. at 8–11.
Deciding whether a defendant’s alleged actions are likely to cause confusion is a “factintensive inquiry that depends greatly on the particulars of each case.” Kelly-Brown v. Winfrey,

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717 F.3d 295, 307 (2d Cir. 2013). Indeed, in the ultimate resolution of trademark infringement
claims on the merits in the Second Circuit, courts evaluate the Polaroid factors, which include the
strength of the trademark, the degree of similarity between the two marks, the proximity of the
products and their competitiveness with one another, the likelihood that the prior owner will bridge
the gap by developing a product for sale in the market of the alleged infringer’s product, evidence
of actual consumer confusion, and sophistication of consumers in the relevant market. Id. (citing
Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961). This is not a
“mechanical” test. Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 115 (2d Cir.
2009) (internal citation omitted).
Because this inquiry is so fact-specific, it is generally inappropriate for the pleadings stage.
In fact, Plaintiffs’ hurdle for pleading the likelihood of confusion is “exceedingly low.” BBAM
Aircraft Mgmt., LP v. Babcock & Brown LLC, No. 20-cv-1056 (VLB), 2021 WL 4460258, at *4
(D. Conn. Sept. 29, 2021); see also Cousteau Soc’y, Inc. v. Cousteau, 498 F. Supp. 3d 287, 309
(D. Conn. 2020) (“as a general rule, the likelihood of confusion is a fact-intensive analysis that
ordinarily does not lend itself to a motion to dismiss”) (cleaned up) (internal citation omitted).
While there is an “exceedingly low” threshold for a trademark infringement claim to clear
at the motion to dismiss stage, there is still a threshold to surmount nonetheless. Specifically, a
court may dismiss a claim for trademark infringement “if no reasonable factfinder could find a
likelihood of confusion on any set of facts that plaintiff could prove.” Scotch & Soda B.V. v.
Scotch & Iron LLC, No. 1:17-cv-04561 (ALC), 2018 WL 2224997, at *3 (S.D.N.Y. May 15,
2018). Another articulation of this principle is that a plaintiff’s complaint will not survive a motion
to dismiss where the marks are obviously dissimilar. See Le Book Pub., Inc. v. Black Book
Photography, Inc., 418 F. Supp. 2d 305, 311 (S.D.N.Y. 2005).

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2. Discussion
Here, Plaintiffs have adequately pleaded the four counts for trademark infringement that
Seahorse seeks to dismiss related to Seahorse’s Tide Right and Flex Slide products. In alleging
that Seahorse’s Tide Right and Flex Slide are both “similar in, inter alia, connotation to Plaintiffs’
registered TIDESLIDE mark,” Am. Compl. ¶¶ 37, 47, 67, 77, Plaintiffs plausibly allege that
Seahorse’s use of “Tide Right” and “Flex Slide” is likely to “cause confusion as to the affiliation,
connection, or association of defendant with plaintiff.” 1-800 Contacts, Inc. v. WhenU.Com, Inc.,
414 F.3d 400, 407 (2d Cir. 2005) (cleaned up). Indeed, Plaintiffs have plausibly alleged a
similarity in connotation through a similarity of product names given that “Tide Right” includes
“Tide” and “Flex Slide” includes “Slide.” See Am. Compl. ¶¶ 37, 47, 67, 77. Plaintiffs further
allege that Seahorse, for its Tide Right and Flex Slide products, uses identical or at least related
goods to PSI Marine’s registered trademark, targets the same customers, and uses the same
marketing channels as PSI Marine for their TIDESLIDE products. Am. Compl. ¶¶ 38–40, 48–50,
68–70, 78–80. That Plaintiffs do not specifically define the connotation of their TIDESLIDE mark
and use the catch-all phrase “inter alia” to invoke other alleged similarity—while not a model of
pleading clarity—is not fatal, in light of these other allegations. For instance, Plaintiffs do not
baldly assert that the similarities between TIDESLIDE and Tide Right and Flex Slide are likely to
cause confusion in rote, formulaic fashion. Instead, Plaintiffs’ assertions of customer confusion
are supported by specific factual allegations relating to the similarity in product names and
placement, making the claims plausible at this stage.
Seahorse’s heavy reliance on Le Book is misplaced. In contending that PSI Marine cannot
exclusively control use of the words “tide” and “slide,” Seahorse cites to Le Book’s observation
that the plaintiff’s mark “Le Book” and the defendant’s publication, “The Black Book,” shared

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only the word “book,” which was generic and unregistrable as a trademark. See Le Book, 418 F.
Supp. 2d at 311. But in dismissing the plaintiff’s trademark infringement claim, Le Book also
considered many other aspects of similarity beyond use of the word “book,” finding that the
parties’ marks were quite “physically and visually distinct.” See id. at 311–12. The Court cannot
make the same findings here.
Rather, the district court’s analysis in Scotch & Soda B.V. is more applicable to the present
case. There, the court rejected the defendants’ arguments that the plaintiff was trying to enforce a
mark based only on the word “scotch,” where the plaintiff’s marks all contained “SCOTCH” and
another word. Scotch & Soda B.V., 2018 WL 2224997, at *3–4 (distinguishing LeBook). The
court also credited plaintiff’s allegations that the defendants’ mark was “highly similar” and was
used in connection with highly similar clothing goods and services. Id. Here, Plaintiffs have
alleged not only that TIDESLIDE and Tide Right and Flex Slide are similar in connotation, but
also that Seahorse uses the Tide Right and Flex Slide names on identical or related goods, marketed
through similar channels. Am. Compl. ¶¶ 36–40, 46–50, 66–70, 76–80. Plaintiffs’ allegations,
then, do not rest solely on Seahorse’s use of one generic word.
In reaching this conclusion, the Court need not apply all of the Polaroid factors at this stage
of the litigation. Because the inquiry is so fact-specific, a full Polaroid analysis is not appropriate
when deciding a motion to dismiss. See Uber, Inc. v. Uber Techs., Inc., 521 F. Supp. 3d 455, 465
(S.D.N.Y. 2021) (declining to engage in a full Polaroid analysis at the motion to dismiss stage
“[b]ecause a more developed factual record is needed” and denying motion to dismiss trademark
infringement claim). In any event, to the extent Seahorse seeks to invoke the Polaroid factors, it
only argues one: the degree of similarity between its marks and PSI Marine’s TIDESLIDE mark.
See Def.’s Br. at 9–11; Def.’s Reply Br., ECF No. 41 at 7–9. The Court concludes that the “Tide

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Right” and “Flex Slide” product names are similar enough to TIDESLIDE, particularly when
combined with Plaintiffs’ other allegations, to meet the “exceeding low” pleading threshold. See
BBAM Aircraft Mgmt., LP, 2021 WL 4460258, at *4. Of course, Seahorse remains free to raise
the Polaroid factors at a later stage of this litigation.
Accordingly, the motion to dismiss Counts Two, Three, Five, and Six is denied.
B. False Advertising (Counts Seven and Eight)
The Court also concludes that Counts Seven and Eight plausibly state a claim for false
advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). False advertising
claims under the Lanham Act have two components: a plaintiff must show falsity and that the
false or misleading representation involved an inherent or material quality of the product. Apotex
Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 63 (2d Cir. 2016). Seahorse’s motion is not directed
at the second of these elements. Accordingly, the Court focuses on whether Plaintiff plausibly
alleged a false or misleading representation. The false or misleading representation element is
established if either (1) the “challenged advertisement is literally false, i.e., false on its face” or (2)
“the advertisement, while not literally false, is nevertheless likely to mislead or confuse
customers.” Tiffany (NJ), Inc. v. eBay, Inc., 600 F.3d 93, 112 (2d Cir. 2010). Plaintiffs contend
that two of Seahorse’s statements on its websites are literally false: that Seahorse’s Tide Right
product contains a “patented self-adjusting fender and cleat” (Count Seven) and that “Seahorse
Docking offers the only adjustable Self-Leveling Docking System!” (Count Eight).
First, the Court holds that Count Seven plausibly alleges a false statement. That count
alleges that Seahorse advertises on its website that its Tide Right product contains a “patented selfadjusting fender and cleat,” but that Seahorse, in fact, is not the owner of any U.S. patent. Am.
Compl. ¶¶ 86–87. The Count further alleges that, to the extent that Seahorse tries to claim that it

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is the owner of U.S. Patent No. 11,035,090 (“‘090 Patent”), this patent is not owned by Seahorse
(but rather a dissolved LLC named Seahorse Fender & Docking) and does not disclose a “cleat.”
Id. ¶¶ 88–90.
As an initial matter, accepting Plaintiffs’ well-pleaded factual allegations as true, as the
Court must at this stage, Count Seven states a claim for false advertising. See Iqbal, 556 U.S. at
678. Plaintiffs offer specific facts relating to the alleged falsity of Seahorse’s statement—namely
that Seahorse advertised that its Tide Right product was patented but that the Tide Right product
was not, in fact, patented. In the Court’s view, this analysis is dispositive of the legal sufficiency
of Count Seven at the motion to dismiss stage.
Nonetheless, both parties invite the Court to review documents outside of the amended
complaint, which the Court now analyzes. Seahorse counters Plaintiffs’ allegations by arguing
that U.S. Patent and Trademark Office (“PTO”) records show that it is the record assignee of
multiple patents, including the ‘090 Patent and U.S. Patent No. 9,302,750 (“‘750 Patent”), and that
the Court may take judicial notice of such records. Def.’s Br. at 11–12. Seahorse further asserts
that its Tide Right product is a commercial embodiment of the self-adjusting fender and cleat
shown in Figure 6 of the ‘750 Patent. Id. at 12; ECF No. 36-3 at 5 (‘750 Patent depicting Figure
6). Plaintiff concedes that the Court may take judicial notice of the ‘750 Patent. Pls.’ Br., ECF
No. 40 at 16. The parties disagree, however, as to whether the ‘750 Patent’s possible nunc pro
tunc assignment to Seahorse made Seahorse the owner of a valid patent at the time the
representation of patent protection was made. See ECF No. 41-2 (Confirmatory Assignment
executed May 6, 2022, effective nunc pro tunc as of October 9, 2020). Moreover, the parties both
dive into highly technical and fact-intensive analysis of whether the ‘750 patent actually covers a
“self-adjusting fender and cleat.”

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The Court agrees with the parties that it may take judicial notice of matters of public record,
including public filings with the PTO. See Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012)
(recognizing that a court may take judicial notice of relevant matters of public record); Nespresso
USA, Inc. v. Peet’s Coffee, Inc., No. 22-cv-02209 (CM), 2023 WL 374980, at *4 (S.D.N.Y. Jan.
24, 2023) (“It is well established that [t]he Court may properly take judicial notice of official
records of the United States Patent and Trademark Office.”). But the scope of what the Court may
take judicial notice of is not unlimited. Indeed, the Court may only take judicial notice of facts
“not subject to reasonable dispute.” Fed. R. Evid. 201(b). Moreover, the purpose of judicial notice
is generally to establish the fact of a document’s existence and not to establish the truth of the
matters asserted therein. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). To hold
otherwise would “permit the improper transformation of the Rule 12(b)(6) inquiry into a summaryjudgment proceeding.” See Nespresso USA, Inc., 2023 WL 374980, at *4.
Applying those principles here, the Court finds that it may take judicial notice of the
existence of the ‘750 patent and of the fact that the PTO records reflect an assignment of that patent
with an “execution date” of May 6, 2022, see ECF No. 40-2 at 2, but that it cannot, through judicial
notice, decide what intellectual property rights may have been conveyed in a possible nunc pro
tunc patent assignment. Nor is it appropriate to decide the question of whether the ‘750 patent
discloses a self-adjusting fender and cleat at this juncture. Not only does the parties’ extensive
briefing on these questions highlight that there is disagreement, but these questions would also
require the Court to make findings as to mixed questions of law and fact. To take judicial notice
to resolve these issues would expand the doctrine of judicial notice beyond its established scope,
which is limited to facts “not subject to reasonable dispute.” Fed. R. Evid. 201(b). Moreover,
setting the scope of judicial notice aside, such fact-specific inquiries are inappropriate at the motion

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to dismiss stage. See Blank v. Pollack, 916 F. Supp. 165, 172 (N.D.N.Y. 1996) (finding falsity
regarding the scope of a patent to be a material question of fact at the summary judgment stage);
Enzo Life Scis., Inc. v. Digene Corp., 295 F. Supp. 2d 424, 427 (D. Del. 2003) (taking counterclaim
plaintiff’s allegations of a false or misleading claim of patent ownership as true at the motion to
dismiss stage).
For similar reasons, the Court also concludes that Count Eight states a claim for false
advertising under the Lanham Act. That count alleges that Seahorse advertises on its website that
it “offers the only adjustable Self-Leveling Docking System,” when, in fact, PSI Marine also sells
adjustable self-leveling docking systems. Am. Compl. ¶¶ 95–96. Seahorse argues that, because it
owns the ‘750 Patent, it has the exclusive right to make, use, and sell its patented self-leveling
docking system. Def.’s Br. at 13. As discussed above, the Court cannot engage in such an inquiry
by judicial notice or, even after taking such notice, at the motion to dismiss stage. At this juncture,
it is sufficient for the Court to conclude that Plaintiffs have sufficiently alleged the falsity of
Seahorse’s statement that it offered the only adjustable self-leveling docking system when
Plaintiffs, in fact, also offered such a system.
Seahorse remains free to renew its arguments as to these issues at summary judgment.
C. Copyright Infringement (Count Nine)
Finally, the Court holds that Plaintiffs have stated a plausible claim for copyright
infringement.
Count Nine alleges that PSI Marine is the exclusive licensee of a copyright (“‘659
copyright registration”) in a brochure that includes a price guide for its TIDESLIDE product in
which the X-axis represents various steel size categories and the Y-axis represents various boat
size categories and the price of the TIDESLIDE product varies based on the inputs on either axis.

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See Am. Compl. ¶¶ 22–24; id., Ex. E. Plaintiffs specifically allege that Seahorse’s price guide
infringes on the ‘659 copyright registration by copying (1) the “price guide layout” and (2) the
boat and steel size “categories and designations.” Am. Compl. ¶¶ 24, 101; see id., Ex. F. The
Court holds that Plaintiffs have stated a plausible claim for copyright infringement as to these
elements of PSI’s brochure.
To survive a motion to dismiss, a copyright infringement claim must plausibly allege “(1)
ownership of a valid copyright, and (2) copying of constituent elements of the work that are
original.” Abdin v. CBS Broad., Inc., 971 F.3d 57, 66 (2d Cir. 2020). To satisfy the second
element, a plaintiff must show that “(1) the defendant has actually copied the plaintiff's work; and
(2) the copying is illegal because a substantial similarity exists between the defendant’s work and
the protectible elements of plaintiff’s [work].” Id. (emphasis in original). As Seahorse only
challenges Count Nine by arguing that it did not copy any protectable elements of PSI Marine’s
copyright, the Court focuses only on that portion of the copyright infringement analysis. See Def.’s
Br. 13–16.
A fundamental principle of copyright law is that copyright protection extends only to
original works. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (“The
sine qua non of copyright is originality. To qualify for copyright protection, a work must be
original to the author.”). To be original, a work must possess “at least some minimal degree of
creativity.” Id. The requisite degree of creativity is “extremely low;” all that is required is “some
creative spark, no matter how crude, humble or obvious it might be.” Id. While a certificate of
copyright registration constitutes prima facie evidence of the validity of the copyright and the
originality of a work, the mere fact that a work is copyrighted “does not mean that every element
of that work is protected.” Boisson v. Banian, Ltd, 273 F.3d 262, 268 (2d Cir. 2001). Rather, the

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“threshold question is what characteristics of [plaintiffs’] design have gained copyright
protection.” Id. (quoting Herbert Rosenthal Jewelry Corp v. Honora Jewelry Co., 509 F.2d 64,
65 (2d Cir. 1974) (per curiam)).
An important corollary is that facts, by their nature neither original nor works, are not
copyrightable.

Id. at 345.

Compilations of facts, on the other hand, may sometimes be

copyrightable, as the “compilation author typically chooses which facts to include, in what order
to place them, and how to arrange the collected data so that they may be used effectively by
readers.” Id. at 358. The key determining factor between unprotectable facts and protectable
compilations again draws on the fundamental principle underlying copyright law: originality.
Specifically, there are three requirements for a compilation of facts to qualify for copyright
protection: “(1) the collection and assembly of preexisting data; (2) the selection, coordination, or
arrangement of that data; and (3) a resulting work that is original, by virtue of the selection,
coordination, or arrangement of the data contained in the work.” Key Publications, Inc. v.
Chinatown Today Pub. Enterprises, Inc., 945 F.2d 509, 512 (2d Cir. 1991) (citing Feist, 499 U.S.
at 357).
In applying these principles, the Court concludes that, while it is a close question, the “price
guide layout” is an original compilation on which Plaintiffs’ claim of copyright infringement claim
can be based. Feist makes clear that, if the “selection and arrangement” of facts are original, “these
elements of the work are eligible for copyright protection.” Feist, 499 U.S. at 349. The copyright
in a factual compilation is “thin,” such that a subsequent compiler “remains free to use the facts
contained in another’s publication to aid in preparing a competing work,” but the subsequent
compiler cannot “feature the same selection and arrangement.” Id. Here, Plaintiffs have prima
facie evidence of copyright protection, since the brochure in which the price guide appears is

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alleged to be copyrighted under the ‘659 registration. Am. Compl. ¶ 22. The Court further
concludes that choosing to arrange the information in the table format, with steel size categories
and designations on the X-axis and boat size categories and designations on the Y-axis, entails the
minimal degree of creativity necessary to be protectable. Unlike the unoriginal alphabetical
arrangement of contact information in a phone book in Feist, here, Plaintiffs allege a certain
curation of facts in which the copyright author made a creative decision regarding “which facts to
include, in what order to place them, and how to arrange the collected data so that they may be
used effectively by readers.” Feist, 499 U.S. at 348. The price guide layout does not fall into the
“narrow category of works in which the creative spark is utterly lacking or so trivial as to be
virtually nonexistent.” Id. at 359; see also Edgenet, Inc. v. GS1 AISBL, 742 F. Supp. 2d 997, 1023
(E.D. Wis. 2010) (finding copyright infringement claim concerning spreadsheet with taxonomy
categories selected and arranged by the plaintiff to be sufficiently original for purposes of motion
to dismiss).
Seahorse’s argument that the categories and designations simply include unprotectable
factual information misses the plausibly alleged compilatory function performed by the
copyright’s author. The physical measurements of a boat or shaft would be non-copyrightable
facts. The grouping into various classes of those measurement on a price guide layout, however,
is an original compilation of those facts. Crucially, Plaintiffs allege that the boat size categories
and designations were “created,” thereby making plausible that the categories are a “selection,
coordination, or arrangement” of the data that is original by virtue of that selection, coordination,
or arrangement. See Am. Compl. ¶ 23; Feist, 499 U.S. at 348 (“[C]hoices as to selection and
arrangement, so long as they are made independently by the compiler and entail a minimal degree
of creativity, are sufficiently original that Congress may protect such compilations through the

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copyright laws.”). Seahorse’s citation to Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,
602 F.3d 57, 63–64 (2d Cir. 2010), is likewise inapposite because that case addressed whether a
district court could consider, on a motion to dismiss, whether two works (architectural designs)
were substantially similar. As Seahorse does not advance the issue of substantial (dis)similarity
in the present motion, that case is not relevant here.
Accordingly, the Court concludes that Count Nine states a claim for copyright
infringement.
IV.

CONCLUSION

For the reasons described herein, Defendant’s motion to dismiss Plaintiffs’ amended
complaint is DENIED.

SO ORDERED at Hartford, Connecticut, this 26th day of November, 2024.
/s/ Sarala V. Nagala
SARALA V. NAGALA
UNITED STATES DISTRICT JUDGE

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