Lincare Holdings Inc. et al v. Doxo, Inc.

Filing 119

ORDER: Defendant Doxo, Inc.'s sealed Motion for Summary Judgment (Doc. # 75) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 2/6/2024. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LINCARE HOLDINGS INC. and
LINCARE LICENSING INC.,
Plaintiffs,
v.

Case No. 8:22-cv-2349-VMC-AEP

DOXO, INC.,
Defendant.

/
ORDER

This matter is before the Court on consideration of
Defendant Doxo, Inc.’s sealed Motion for Summary Judgment
(Doc. # 75), filed on November 17, 2023. Plaintiffs Lincare
Holdings

Inc.

and

Lincare

Licensing

Inc.

responded

on

December 8, 2023. (Doc. # 100). Doxo replied on December 22,
2023. (Doc. # 115). As explained below, the Motion is denied.
Discussion
Plaintiffs

are

national

health

care

companies

that

provide patients “with top quality treatments and durable
medical

equipment.”

(Johnson

Decl.

at

¶

3).

Plaintiffs’

“portfolio includes healthcare goods and services offered in
connection with the trademarks LINCARE, mdINR, CONVACARE,
AMERICAN HOMEPATIENT, PREFERRED HOMECARE, and the trade name
SPECIALIZED MEDICAL SERVICES.” (Id.). Doxo runs an all-in1

one bill pay service that allows users to pay bills to over
120,000 billers using Doxo’s website. (Shivers Decl. at ¶ 2).
Doxo,

although

unaffiliated

with

Plaintiffs,

includes

Plaintiffs as billers that can be paid through Doxo’s website.
Doxo’s biller pages for Plaintiffs include use of Plaintiffs’
trademarks and trade names.
Plaintiffs initiated this action against Doxo on October
13, 2022, asserting claims for trademark and service mark
infringement in violation of Section 32 of the Lanham Act
(Count 1); false representation and false designation of
origin in violation of Section 43(a) of the Lanham Act (Count
2); unfair competition in violation of the Florida Deceptive
and

Unfair

Trade

Practices

Act

(“FDUTPA”)

(Count

3);

trademark infringement, trade name infringement, and unfair
competition under Florida common law (Count 4); and tortious
interference with business relationships (Count 5). (Doc. #
1).
Now,

Doxo

seeks

infringement

and

relationships

claims,

SPECIALIZED

summary

tortious

MEDICAL

as

judgment

only

on

with

business

claims

involving

interference

well

SERVICES.

as

all

(Doc.

#

75).

Among

the

other

arguments, Doxo contends that its use of Plaintiffs’ marks is
protected

by

the

doctrine

of
2

nominative

fair

use

and,

regardless, there is no likelihood of confusion. The Motion
is fully briefed and ripe for review. (Doc. ## 100, 115).
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.”

Fed.

R. Civ. P. 56(a). 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). 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 non-moving party’s favor. Shotz v. City
of Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).
The

Motion

is

denied

because

genuine

disputes

of

material fact remain on multiple issues relevant to all
claims.

Specifically,

regarding

the

infringement

claims,

genuine disputes of material fact exist as to whether Doxo’s
use of Plaintiffs’ marks qualifies as nominative fair use and
whether Doxo’s use creates a likelihood of confusion. See
Farmers Mut. Ins. Co. of Nebraska v. Doxo, Inc., No. 4:21CV-3323, 2022 WL 20678372, at *2 (D. Neb. Dec. 15, 2022) (“The
nominative fair use framework is simply an alternative method
3

to determine whether a defendant used a plaintiff’s mark in
a manner likely to cause confusion. And due to the factspecific nature of determining the likelihood of confusion,
such matters are generally not resolved as a matter of law.”
(citations omitted)). Indeed, among other things, conflicting
evidence exists regarding the prominence and efficacy of
Doxo’s disclaimers on its website and whether Doxo used more
of Plaintiffs’ marks than reasonably necessary to identify
Doxo’s service.
As

to

the

tortious

interference

claims,

a

genuine

dispute exists as to whether Plaintiffs have suffered damage
to their business as a result of Doxo’s actions. See (Johnson
Decl. at ¶¶ 21-27); Ethan Allen, Inc. v. Georgetown Manor,
Inc., 647 So. 2d 812, 814 (Fla. 1994) (“The elements of
tortious interference with a business relationship are ‘(1)
the existence of a business relationship . . . (2) knowledge
of the relationship on the part of the defendant; (3) an
intentional

and

unjustified

interference

with

the

relationship by the defendant; and (4) damage to the plaintiff
as a result of the breach of the relationship.” (quoting
Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127
(Fla. 1985))). Finally, there is a genuine dispute as to
whether

the

trade

name

SPECIALIZED
4

MEDICAL

SERVICES

is

sufficiently distinctive, whether any likelihood of confusion
exists as to this trade name, and whether Plaintiffs suffered
any harm because of Doxo’s use of the trade name.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Defendant

Doxo,

Inc.’s

sealed

Motion

for

Summary

Judgment (Doc. # 75) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 6th
day of February, 2024.

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