Brand Ventures, Inc. v. TAC5, LLC et al

Filing 70

ORDER denying 12 Defendant Johnathan Curtis' Motion to Dismiss for Failure to State a Claim. Defendant Johnathan Curtis shall answer the Complaint on or before May 14, 2018. Signed by Judge Paul G. Byron on 4/30/2018. (JRJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

BRAND VENTURES, INC.,
Plaintiff,
v.

Case No: 6:17-cv-1983-Orl-40KRS

TAC5, LLC, NATIONAL ENTERPRISE
GROUP, LLC, JOHNATHAN CURTIS,
and JOHN DOES 1–5,
Defendants.
/
ORDER
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

1

This account of the facts is taken from Plaintiff’s Verified Complaint (Doc. 1). The Court
accepts these factual allegations as true when considering motions to dismiss. See
Williams v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).

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 nearidentical 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.

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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

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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, 811 (11th Cir. 1985); see also
Foreign Imported Prods. & Pub. v. Grupo Indus. Hotelero, S.A., No. 07-22066-CIV, 2008
WL 4724495, at *13 (S.D. Fla. Oct. 24, 2008).
Rule 12(b)(6) does not demand the facts supporting Plaintiff’s claims be alleged in
“novelistic detail.” Disney Enters., Inc. v. Hotfile Corp., 798 F. Supp. 2d 1303, 1311 (S.D.
Fla. 2011). Here, the Verified Complaint states sufficient factual allegations to plead
individual liability claims for the infringements alleged in Counts I–III. 2 Plaintiff alleges
Curtis is an “officer, manager, and owner” of the infringing entities, and “personally
ordered, directed, ratified, and endorsed” the alleged infringing activities. (Doc. 1, ¶ 14).
Reading paragraph fourteen of the Verified Complaint alongside its account of pervasive

2

See also Tropical Smoothie Franchise Dev. Corp. v. Hawaiin Breeze, Inc., No.
805CV0054417TGW, 2005 WL 1500886, at *4 (M.D. Fla. June 23, 2005) (denying
motion to dismiss unfair competition claim because of the similarity between unfair
competition claims and trademark claims, where the complaint stated a plausible
trademark infringement); 4 MCCARTHY ON TRADEMARKS & UNFAIR COMPETITION § 25:24
(5th ed.) (“A trademark, like a patent or a copyright, may be infringed by an individual
as well as a corporation and all participants, including those acting merely as officers
of a corporation, may be jointly and severally liable.”).

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copyright and trademark infringements, the Court is satisfied that the Verified Complaint
alleges plausible bases for individual liability against Defendant Curtis—officer, manager,
and owner of the infringing companies. 3
B.

Count IV

Curtis also avers that, if Counts I–III are dismissed, then “Count IV of the
Complaint, which is based on the same factual predicate but brought under State law,
should also be dismissed against Curtis.” (Doc. 12, p. 5). And even if Count IV stated a
plausible claim, Curtis contends it would be barred by Fla. Stat. §§ 605.04093(1),
605.0304(1) (2017). (Id.). Defendant’s first argument fails because of the Court’s finding
that Counts I–III stated plausible claims.
The Court therefore need only decide whether Count IV is barred by the statutes
identified by Plaintiff. Plaintiff’s response in opposition to Defendant’s motion to dismiss
does not address these statutes.
The statutes at issue provide:
605. 0304(1):
(1) A debt, obligation, or other liability of a limited liability company is solely
the debt, obligation, or other liability of the company. A member or manager
is not personally liable, directly or indirectly, by way of contribution or
otherwise, for a debt, obligation, or other liability of the company solely by
reason of being or acting as a member or manager. . . .
605.04093(1):
(1) A manager in a manager-managed limited liability company or a member
in a member-managed limited liability company is not personally liable for
monetary damages to the limited liability company, its members, or any
other person for any statement, vote, decision, or failure to act regarding
3

The facts Defendant Curtis demands, moreover, are beyond Plaintiff’s reach. See
United States v. Baxtern Int’l, Inc., 345 F.3d 866, 881 (11th Cir. 2003) (“Courts typically
allow the pleader an extra modicum of leeway where the information supporting the
complainant’s case is under the exclusive control of the defendant.”).

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management or policy decisions by a manager in a manager-managed
limited liability company or a member in a member-managed limited liability
company unless:
(a) The manager or member breached or failed to perform the duties as
a manager in a manager-managed limited liability company or a member
in a member-managed limited liability company; and
(b) The manager's or member's breach of, or failure to perform, those
duties constitutes any of the following:
...
2. A transaction from which the manager or member derived an
improper personal benefit, directly or indirectly.
...
5. In a proceeding by or in the right of someone other than the limited
liability company or a member, recklessness or an act or omission
that was committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights,
safety, or property.
Fla. Stat. §§ 605.04093(1), 605.0304(1) (2017). At this early stage, it is unclear whether
these statutes are lethal to Count IV. 4 Defendant’s motion to dismiss Count IV is therefore
due to be denied.

4

Section 605.0304, on its face, appears to bar claims against Defendant Curtis based
on actions taken by Curtis in his capacity as an agent of an LLC. However, the Court
is unaware of precedent applying § 605.0304 to dispose of claims in the manner
requested by Defendant. Moreover, the general rule of no personal liability for
members and managers of an LLC is subject to numerous exceptions, therefore
dismissal at the pleading stage would be inappropriate. See Schojan v. Papa John’s
Int’l, 34 F. Supp. 3d 1206, 1210 (M.D. Fla. 2014) (“Plaintiffs are not required to
anticipate affirmative defenses in pleading their complaint.”); Thomas O. Wells &
Diane Noller Wells, Judicial Exceptions to Limited Liability Protection Provided by
Florida LLCs, 90 FLA. B. J. 26 (2016).

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IV.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED that

Defendant Johnathan Curtis’ Motion to Dismiss (Doc. 12) is DENIED. Defendant Curtis
shall answer the Complaint no later than May 14, 2018.
DONE AND ORDERED in Orlando, Florida on April 30, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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