Dynamic Designs Distribution, Incorporated v. Nalin Manufacturing, LLC et al
Filing
38
ORDER: Plaintiff Dynamic Designs Distribution, Inc.'s Motion for Summary Judgment 35 is granted in part and denied in part. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 4/18/2014. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DYNAMIC DESIGNS DISTRIBUTION
INC.,
Plaintiff,
v.
Case No. 8:13-cv-707-T-33TBM
NALIN MANUFACTURING, LLC and
ANDREW NALIN,
Defendants.
________________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Dynamic
Designs
Distribution,
Inc.’s
Motion
for
Judgment (Doc. # 35) filed on January 24, 2014.
Nalin
Manufacturing,
LLC
and
Andrew
Nalin
Summary
Defendants
(collectively
“Nalin”) filed a Response in Opposition to the Motion for
Summary Judgment (Doc. # 36) on February 7, 2014, to which
Dynamic Designs filed a Reply (Doc. # 37) on February 17,
2014.
For the reasons that follow, the Court grants the
Motion for Summary Judgment in part.
I.
Background
A.
Nalin’s Speaker Adapter and Attempts to Protect it
Andrew Nalin is the President of Nalin Manufacturing.
(Nalin Decl. Doc. # 36-1 at ¶ 2).
Nalin
designed
an
aftermarket
On August 2, 2010, Mr.
speaker
adapter
for
Jeep
Wrangler automobiles. (Id. at ¶ 3). The Nalin speaker adapter
is made of steel, has rounded corners, features holes for
mounting, and includes hardware for installation. (Id. at
¶¶ 4, 9, 12). Mr. Nalin filed a design patent application for
the speaker adapter on September 4, 2011. (Id. at ¶ 34).
The
application was incomplete, and Mr. Nalin received a Notice of
Incomplete Application, issued by the United States Patent and
Trademark Office (“USPTO”) in late September of 2011. (Id. at
¶ 35).
Mr. Nalin “did not respond to the Notice and the
patent application was never examined.” (Id.).
The USPTO
issued a Notice of Abandonment on December 23, 2011. (Id. at
¶ 36; Doc. # 35-5 at 2).
Mr. Nalin filed a copyright application relating to the
speaker adapter on February 17, 2012. (Nalin Dec. Doc. # 36-1
at ¶ 41).
On July 24, 2012, the United States Copyright
Office rejected the copyright application, noting, inter alia:
“[b]ecause all of the elements of the work you deposited are
either related to the utilitarian aspects or function, or are
subsumed within the overall shape, contour, or configuration
of
the
article,
there
is
no
physically
‘separable’ authorship as such.
conceptually
Consequently, we cannot
register this claim.” (Doc. # 35-6 at 4).
2
or
B.
Communications with Dynamic Designs
In May of 2011, Dynamic Designs began selling its Jeep
Wrangler aftermarket speaker adapter on eBay. (Horning Aff.
Doc. # 35-1 at ¶ 4).
Dynamic Designs utilized the seller
names “Autoware 302" and “Florida Handmade Creations.” (Id.).
On August 19, 2011, Mr. Nalin contacted Dynamic Designs via
email correspondence through eBay, in which Mr. Nalin alleged
that Dynamic Designs “stole [his] idea” and was “selling
someone else’s product.” (Horning Aff. Doc. # 35-1 at ¶ 5).
On November 11, 2011, Mr. Nalin filed a “VeRO complaint with
eBay
asserting
that
the
Dynamic
Designs
speaker
adapter
infringed Nalin’s trademark rights.” (Nalin Decl. Doc. # 36-1
at ¶ 46; Doc. # 36-8 at 2-3). In that document, Mr. Nalin
categorized
Dynamic
Designs’
speaker
adapters
as
“a
counterfeit product which infringes the trademark owner’s
rights” and submitted that:
under penalty of perjury that I am the owner, or an
agent authorized to act on behalf of the owner, of
certain intellectual property rights (‘IP Owner’);
I have a good faith belief that the listings
identified (by item number) in the addendum
attached hereto offer items or contain materials
that are not authorized by the IP Owner, its agent,
or the law; and [t]he information in this notice is
accurate. Please act expeditiously to remove the
listings identified in the addendum.
(Doc. # 36-8 at 2-4).
3
On February 29, 2012, eBay responded to Mr. Nalin’s
complaint by removing Dynamic Designs eBay listings under the
Autoware302 account. (Doc. # 1-4; Doc. # 35-4 at 3). However,
Dynamic Designs “continued selling the subject car speaker
adapters under the account name ‘Florida Handmade Creations.’”
(Horning Aff. Doc. # 35-1 at ¶ 16).
Then, on February 18,
2013, Dynamic Designs “received a cease and desist letter from
Mr.
Nalin
stating
that
Mr.
Nalin
holds
the
‘copyright,
trademark, patent pending along with trade dress protection
previously
recognized
Autoware302.’”
Manufacturing
(Id.;
posted
and
Doc.
the
enforced
#
1-9).
cease
and
by
eBay
In
against
addition,
desist
letter,
follows, on its Facebook page:
Dynamic Designs Distribution, Inc.,
It has come to my attention that you have made
unauthorized uses of my copyrighted 5.25" TJ
Speaker Adapter design in the preparation of a work
derived therefrom. I have reserved all rights in
the Work, which was first published in 2010 on
http://www.NalinMFG.com, and I hold the copyright,
trademark, patent pending, along with trade dress
protection previously recognized and enforced by
eBay against user Autoware302. . . . You neither
asked for nor received permission to use my Work as
the basis for your replicas, nor to make or
distribute copies of it. These actions constitute
copyright infringement in violation of United
States Copyright laws. Under 17 U.S.C. § 504, the
consequences of copyright infringement include
statutory damages of between $750 and $30,000 per
work, at the discretion of the court, and damages
up to $150,000 per work for willful infringement.
4
user
Nalin
which
If you continue to engage in copyright infringement
after receiving this letter, your actions will be
evidence of “willful infringement.” I demand that
you immediately cease the use and distribution of
all infringing works derived from my Work, and all
copies of it, and that you deliver to me all
unused, undistributed copies of it, or destroy such
copies immediately.
(Doc. # 1-9; Doc. # 35-12).
In response to the cease and desist letter, “although
Plaintiff believed that it was entirely unfounded,” Dynamic
Designs “took down any and all of the allegedly infringing car
speaker adapters being sold under the username, ‘Florida
Handmade Creations,’ on eBay” and hired counsel. (Doc. # 1 at
¶ 28; Horning Decl. Doc. # 35-1 at ¶ 15).
C. Complaint
On March 20, 2013, Dynamic Designs filed an action for
declaratory judgment of non-infringement and invalidity of
Nalin’s trade dress (count one), for damages based on Nalin’s
tortious
interference
with
Dynamic
Designs’
business
relationship with eBay (count two) and for damages based on
deceptive and unfair trade practices under Florida’s Deceptive
and Unfair Trade Practices Act, § 501.201 (count three). (Doc.
# 1). Nalin filed an Answer on May 10, 2013. (Doc. # 17).
Dynamic Designs seeks summary judgment as to each of its
complaint counts.
5
II.
Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).
A fact is material if
it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).
The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).
“When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
6
pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor.
Shotz v. City of Plantation, Fla., 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment.
Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel
Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856 (11th
Cir. 1988)).
of
nothing
However, if the non-movant’s response consists
“more
allegations,”
required.
than
summary
a
repetition
judgment
is
of
not
his
only
conclusional
proper,
but
Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.
1981), cert. denied, 456 U.S. 1010 (1982).
7
III. Analysis
A.
Lanham Act Trade Dress
Section 43(a) of the Lanham Act states that:
(1) Any person who, on or in connection with any
goods or services, . . . uses in commerce any word,
term, name, symbol, or device, . . . or any false
designation of origin, . . . which (A) is likely to
cause confusion, or to cause mistake, or to deceive
as to the affiliation, . . . of such person with
another person, . . . shall be liable in a civil
action by any person who believes that he or she or
is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1).
As explained in AmBrit, Inc. v. Kraft, Inc., 812 F.2d
1531, 1535 (11th Cir. 1986), “Section 43(a) creates a federal
cause of action for trade dress infringement.” Trade dress
“refers to the appearance of a product when that appearance is
used to identify the producer.” Dippin’ Dots, Inc. v. Frosty
Bites Distrib., LLC, 369 F.3d 1197, 1202 (11th Cir. 2004).
“Trade dress involves the total image of a product and may
include
features
such
as
size,
shape,
color
or
color
combinations, texture, graphics, or even particular sales
techniques.” Ambrit, 812 F.2d at 1535 (internal quotation
marks omitted).
“While the classic trade dress infringement
action involved the packaging or labeling of goods, the design
of
the
product
itself-–its
configuration--may
8
constitute
protectable trade dress under § 43(a) of the Lanham Act.” Epic
Metals Corp. v. Souliere, 99 F.3d 1034, 1038 (11th Cir. 1996).
To succeed on a claim of trade dress infringement, the
claimant must demonstrate: “(1) the product design of the two
products is confusingly similar; (2) the features of the
product design are primarily non-functional; and (3) the
product design is inherently distinctive or has acquired
secondary meaning.” Dippin’ Dots, Inc., 369 F.3d at 1202. “As
all three elements are necessary for a finding of trade dress
infringement, any one could be characterized as threshold.”
Id. (citing Epic Metals Corp., 99 F.3d at 1039).
1.
Functionality
“The functionality doctrine prevents trademark law, which
seeks
to
promote
competition
by
protecting
a
firm’s
reputation, from instead inhibiting legitimate competition by
allowing a producer to control a useful product feature.”
Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 164 (1995).
“The line between functionality and non-functionality is not
brightly drawn in every case.” Epic Metals Corp., 99 F.3d at
1039.
However, the Dippin’ Dots court articulated two tests
for determining whether a feature is functional (and thus not
9
entitled to trade dress protection) or non-functional (a
requirement for trade dress protection).
The
first
test
is
“commonly
referred
to
as
the
traditional test.” Dippin’ Dots, Inc., 369 F.3d at 1203. Under
that test, “a product feature is functional if it is essential
to the use or purpose of the article or if it affects the cost
or quality of the article.” Id.
The second test is “commonly called the competitive
necessity test.” Id. Under that test, “a functional feature is
one the ‘exclusive use of which would put competitors at a
significant non-reputation-related disadvantage.’” (citing
TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 32
(2001)). “Where the design is functional under the traditional
test, ‘there is no need to proceed further to consider if
there is a competitive necessity for the feature.’” Dippin’
Dots, Inc., 369 F.3d at 1203 (citing TrafFix, 532 U.S. at 33).
In Mobile Shelter Systems USA, Inc. v. Grate Pallet
Solutions, LLC, 845 F. Supp. 2d 1241 (M.D. Fla. 2012), the
court was called upon to determine whether steel storage
containers
determining
were
that
entitled
design
to
trade
features
of
dress
the
protection.
containers
In
were
functional (and thus not entitled to trade dress protection),
10
the court examined the characteristics held out as nonfunctional (such as being made of steel and including wire
mesh and movable racks) and determined that “common, everyday
design characteristics [] do not qualify for trade dress
protection.” Id. at 1257.
The design features of the speaker adapter that Nalin
contends are non-functional are (1) the presence of three
mounting holes, (2) utilization of rounded corners, and (3)
steel construction.
The Court determines that each of these
features is primarily functional and not entitled to trade
dress protection.
As to Nalin’s use of three holes for mounting the speaker
adapter,
Dynamic
Designs
posits
that
“three
holes
are
frequently used in the speaker adapter industry for the same
functional purpose for which [Nalin] use[s] them.” (Doc. # 37
at 3).
Dynamic Designs has filed advertisements for numerous
speaker adapters, all utilizing three holes for mounting.
See (Doc. # 37-3 featuring advertisements for adapters for
Subaru
Forester,
Nissan
240sx,
BMW
3
Series,
and
Jeep
Wranger).
Dynamic Designs also asserts that “[t]he reason for using
three holes in close proximity to one another is a purely
11
functional choice” because “[s]ome speakers may have their
mounting tabs in slightly different locations such that the
middle of the three holes would fit; whereas other speakers
may need to be mounted on the inner-most mounting holes.”
(Doc. # 35 at 11). Nalin Manufacturing’s responses to Dynamic
Designs’ interrogatories lend support to Dynamic Designs’
position.
Specifically,
Dynamic
Designs
requested
that
Nalin
Manufacturing describe “the specific features of Defendant’s
car speaker adapter which are the basis of the Defendant’s
legal contention that trade dress protection exists.” (Doc. #
35-8 at 6).
In response, Nalin Manufacturing did not state
that using three holes was a unique non-functional feature.
Instead, with respect to the three holes, Nalin Manufacturing
indicated: “Due to the popularity, advertisements, industry
recognition,
warranty,
and
visible
success
of
the
Nalin
Manufacturing, LLC brand, many companies have since improved
upon their design to better compete at the functional level
(to include holes
and hardware).” (Id.)(emphasis added).
Thus,
that
it
appears
Nalin
Manufacturing
characterized its hole pattern as functional.
12
has
itself
Dynamic Designs’ discussion of Nalin Manufacturing’s
three hole pattern, which follows, is supported by Nalin
Manufacturing’s aforementioned discovery responses:
Manufacturers seeking to sell speaker adapters
which enable the use of aftermarket speakers in
[original equipment manufacturer] speaker-mounting
locations requires that universal speaker mounting
holes be included, whether it’s three holes or a
slot which extends the length of three individual
holes.
A speaker adapter without such feature
would be worthless, and that feature is therefore
essential to the use and purpose (i.e. mounting all
types of non-jeep speakers in a Jeep) while also
affecting the cost or quality (i.e. a speaker
adapter without the ability to adapt to multiple
brands and types of speakers is of less quality
than one that does allow such universal mounting).
(Doc. # 35 at 12).
Nalin has not provided any evidence
tending to show that inclusion of three holes on the Nalin
speaker adapter is a non-functional characteristic entitled to
trade dress protection.
The Court further finds that Nalin’s use of rounded
corners, as opposed to sharp corners, is also a functional
characteristic.
Nalin Manufacturing’s interrogatory answers
indicate that “[r]ounding the edges is non-functional and
serves no utilitarian purpose.
It was done with the purpose
of separating Nalin Manufacturing, LLC from any and all
competitors so that customers could easily recognize and
identify the highly advertized item.” (Doc. # 35-8 at 7).
However,
Dynamic
Designs
points
13
out
that
“common
sense
dictates that the use of rounded edges would be much safer to
the
installer
than
sharp
or
angular
edges,
such
that
competitors would be put at a competitive disadvantage if they
were not allowed to use rounded edges.” (Doc. # 37 at 4).
Dynamic Designs also notes that “sharp edges on steel are
hazardous to . . . the wiring that will necessarily be in
close proximity to the speaker adapter’s edges.” (Doc. # 35 at
13).
In
further
support
of
its
contention
that
the
utilization of rounded edges on the Nalin speaker adapter is
a functional characteristic that is not entitled to trade
dress protection, Dynamic Designs also points to numerous
speaker adapters featuring rounded corners. (Doc. # 35-9). As
the proponent of trade dress protection for a non-registered
product,
Nalin
bears
the
burden
of
demonstrating
non-
functionality. See Sharn, Inc. v. Wolfe Tory Med, Inc., No.
8:09-cv-706-T-33AEP, 2009 U.S. Dist. LEXIS 97385, at *6 (M.D.
Fla. Sept. 30, 2009). Nalin has not done so with respect to
the utilization of rounded corners.
The Court also reaches the conclusion that Nalin’s choice
to fabricate the speaker adapter from steel is functional. In
Mobile Shelter Systems, USA, Inc., the court rejected the
proposition
that
characteristic
steel
noting:
fabrication
“It
is
14
a
is
a
well-known
non-functional
and
commonly
understood fact that steel is galvanized to resist corrosion.
This method of protecting steel is cheap, effective, and so
widely used in metal fabrication that it strains credulity to
suggest
that
the
galvanized
steel
frames
of
Plaintiff’s
products are anything but functional.” 845 F. Supp. 2d at
1257.
This Court similarly determines that utilization of
steel,
as
opposed
to
plastic
or
wood,
is
a
functional
characteristic that affects the use, purpose, costs, and
quality of the product. A steel product is resistant to
cracking, warping, and corrosion and, as stated by Dynamic
Designs,
“Defendants
do
not
get
a
monopoly
on
durable
material.” (Doc. # 35 at 14).
Here, Nalin has offered no competent evidence that these
characteristics (three mounting holes, rounded corners, and
steel fabrication) serve a source-identifying function, or
that
the
sum
of
these
parts
combine
to
become
source-
identifying. See Mobile Shelter Sys., USA, Inc., 845 F. Supp.
2d at 1258. The Court determines that Nalin’s speaker adapter
lacks non-functional characteristics and is thus not entitled
to trade dress protection. The Court grants the declaratory
relief requested in count one of Dynamic Designs’ Complaint
and finds that “Plaintiff’s design and sale of the car speaker
adapters
made
specifically
for
15
Jeep
Wranglers
does
not
infringe any valid trade dress owned by Defendants and that
Defendants do not own the claimed trade dress.” (Doc. # 1 at
¶ 53).
B.
Tortious Interference
The
required
elements
of
a
claim
for
tortious
interference with a contractual or business relationship under
Florida law are: “(1) the existence of a business relationship
that affords the plaintiff existing or prospective legal
rights;
(2)
the
defendant’s
knowledge
of
the
business
relationship; (3) the defendant’s intentional and unjustified
interference with the relationship; and (4) damage to the
plaintiff.” Int’l Sales & Serv., Inc. v. Austral Insulated
Prods., Inc., 262 F.3d 1152, 1154 (11th Cir. 2001) (quoting
Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812,
814 (Fla. 1994)).1
Here, “Defendants do not dispute that they were aware of
Plaintiff’s relationship with eBay through the Autoware302
entity.” (Doc. # 36 at 16).
The evidence supports Nalin’s
awareness of Dynamic Designs’ relationship with eBay because
1
“Tortious interference with a contract and tortious
interference with a business relationship are basically the
same cause of action. The only material difference appears to
be that in one there is a contract and in the other there is
only a business relationship.” Cent. States, S.E. & S.W. v.
Fla. Soc’y of Pathologists, 824 So. 2d 935, 940 (Fla. 5th DCA
2002).
16
Nalin contacted eBay and accused Dynamic Designs of offering
a counterfeit product.
In addition, Nalin sent Dynamic
Designs multiple items of correspondence with reference to
Dynamic Designs’ eBay sales, including a cease and desist
letter directed to the Florida Handmade Creations account.
(Doc. # 1-9). Thus, the first and second elements of the tort
-- Dynamic Designs’ business relationship with eBay of which
Nalin was aware –- have been satisfied.
However, there is a disputed issue of material fact
regarding whether Nalin intentionally interfered with Dynamic
Designs’ relationship with eBay without justification.
As
explained in Austral Insulated Products, “once the plaintiff
establishes a prima facie case of interference, the burden
shifts to the defendant to justify the propriety of its
conduct.” 262 F.3d at 1159.
Notably, “Florida law recognizes
the principle that actions taken to safeguard or protect one’s
financial
interest,
so
long
as
improper
means
are
not
employed, are privileged.” Johnson Enters. v. FPL Group, Inc.,
162 F.3d 1290, 1321 (11th Cir. 1998).
“Whether interference with a business relationship is
privileged depends upon a balancing of the importance of the
objective advanced by the interference against the importance
of the interest interfered with, considering all circumstances
17
among which the methods and means used and the relation of the
parties are important.” Austral Insulated Prods., 262 F.3d at
1159 (citing Heavener, Ogier Servs., Inc. v. R.W. Fla. Region,
Inc., 418 So. 2d 1074, 1076 (Fla. 5th DCA 1982)). See also
Manufac. Research Corp. v. Greenlee Tool Co., 693 F.2d 1037,
1040 (11th Cir. 1982)(“Although businesses are accorded leeway
in interfering with their competitors’ business relationships,
they must abide by certain rules of combat and not use
improper means of competition.”).
Here, Nalin corresponded with Dynamic Designs through
eBay in September of 2011, and in such correspondence, Nalin
indicated that Dynamic Designs was improperly selling an
“exact replica” of Nalin’s speaker adapter. (Doc. # 35-2). In
addition,
on
November
11,
2011,
Nalin
submitted
a
VeRO
complaint to eBay that Dynamic Designs was counterfeiting
Nalin’s product. (Doc. # 35-3).
However, each of Nalin’s
communications with eBay concerning Dynamic Designs occurred
prior to the USPTO’s Notice of Abandonment issued on December
23,
2011,
copyright
and
the
July
application.
correspondence
to
eBay,
24,
2012,
Thus,
at
Nalin’s
rejection
of
Nalin’s
the
of
Nalin’s
time
intellectual
property
applications had not yet been rejected or otherwise adversely
determined.
18
At this juncture, it is undisputed that Nalin has no
trademark or copyright protection, and by issuance of the
present Order, the Court finds that Nalin also lacks trade
dress protections.
However, there is a genuine issue of
material fact as to whether, in September and November of
2011, Nalin authored his communications to eBay about these
rights in good faith.
“When there is room for different
views, the determination of whether the interference was
improper or not is ordinarily left to the jury, to obtain its
common feel for the state of community mores and for the
manner
in
which
they
would
operate
upon
the
facts
in
question.” Austral Insulated Prods., 262 F.3d at 1159.
In assessing the evidence bearing on the intentional tort
of tortious interference with a business relationship, the
jury, rather than the Court, should decide whether Nalin’s
conduct falls within the competition privilege, or whether he
employed an improper and tortious campaign against Dynamic
Designs. Summary Judgment is therefore inappropriate.2
2
The
The Court also notes that, even if it had not identified
a jury issue with respect to whether Nalin’s interference with
Dynamic Designs’ relationship with eBay was justified or
privileged, summary judgment is also inappropriate because
Dynamic Designs, the summary judgment proponent, has not
provided any evidence in support of its contention that it
suffered damages. Completely absent from the record is any
evidence bearing on sales lost due to Dynamic Designs’
Autoware302 eBay account being suspended, or any other
19
Court accordingly denies Dynamic Designs’ Motion for Summary
Judgment as to Dynamic Designs’ tortious interference with a
business relationship claim asserted in count two of the
Complaint.
C.
Last,
Florida Deceptive and Unfair Trade Practices Act
Dynamic
Designs
contends
that
Nalin
violated
Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat.
§ 501.201, et seq. (“FDUTPA”).
FDUTPA makes it unlawful to
engage in “unfair methods of competition, unconscionable acts
or practices, and unfair or deceptive acts or practices in the
conduct of any trade or commerce.” Fla. Stat. § 501.204(1).
“To state a claim under FDUTPA, a party must generally allege:
(1) a deceptive act or unfair practice; (2) causation; and (3)
actual damages.” Fid. & Guar. Ins. Co. v. Ford Motor Co., No.
6:09-cv-595-Orl-31KRS, 2009 U.S. Dist. LEXIS 46848, at *6
(M.D. Fla. May 21, 2009).
A deceptive act is “an act that is likely to mislead
consumers.” Id.
An unfair practice is “a practice that
offends established public policy and is otherwise ‘immoral,
unethical, oppressive, unscrupulous or substantially injurious
to consumers.’” Id. (citing Rollins, Inc. v. Butland, 951 So.
evidence upon which the Court could rely in rendering an award
of damages.
20
2d 860, 869 (Fla. 2d DCA 2006)).
Pursuant to FDUTPA, “a
consumer” includes individuals, businesses, corporations, or
any commercial entities. Fla. Stat. § 501.203(7).
“trade
or
commerce”
is
defined
to
include
Likewise,
“advertising,
soliciting, providing, offering, or distributing, whether by
sale, rental, or otherwise, or any good or service, or any
property, rather tangible or intangible, or any other article,
commodity, or thing of value.” Fla. Stat. § 501.203(8).
In
addition, the Florida Supreme Court has held that the statute
“applies to private causes of action arising from single
unfair or deceptive acts in the conduct of any trade or
commerce, even if it involves only a single party, a single
transaction, or a single contract.” PNR, Inc. v. Beacon Prop.
Mgmt. Inc., 842 So. 2d 773, 777 (Fla. 2003).
Dynamic Designs’ FDUTPA count, asserted in count three of
the Complaint, alleges inter alia that “Defendants were aware
that its product was not protected by any valid trade dress,
design patent or copyright when it contacted eBay through its
VeRO program, but did so intentionally to have Plaintiff’s
listing taken down and to harm Plaintiff’s business.” (Doc. #
1 at ¶ 61).
In support of the Motion for Summary Judgment, Dynamic
Designs argues, “It is undisputed that Defendants contacted
21
Plaintiff’s sales marketplace (eBay) and made false statements
concerning intellectual property protection.” (Doc. # 35 at
23).
Nalin characterizes this argument as “incredible” and
asserts: “Defendants are at a loss at how it could possibly be
undisputed that Defendants made false statements to eBay. The
evidence shows Defendants’ statements to eBay simply alleged
the Dynamic Designs’ speaker adapter infringed Defendant’s
rights . . .” (Doc. # 36 at 18).
To a large extent, Dynamic Designs’ FDUTPA claim is
predicated
on
the
interference claim.
same
allegations
as
its
tortious
In essence, in both counts, Dynamic
Designs asserts that Nalin made intentionally false statements
to eBay with reference to the speaker adapter with the purpose
of
harming
Dynamic
Designs.
Dynamic
Designs’
tortious
interference and FDUTPA claims are inextricably intertwined.
Consistent
with
the
Court’s
determination
that
summary
judgment is not appropriate as to the tortious interference
claim due to the presence of genuine issues of material fact,
the Court likewise determines that Dynamic Designs is not
entitled to summary judgment as to its FDUTPA claim.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
22
Plaintiff Dynamic Designs Distribution, Inc.’s Motion for
Summary Judgment (Doc. # 35) is GRANTED as to count one and
DENIED as to counts two and three.
DONE and ORDERED in Chambers in Tampa, Florida, this 18th
day of April, 2014.
Copies:
All Counsel of Record
23
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