Silvers v. Google, Inc.

Filing 22

MOTION with memorandum in support by Steven A. Silvers to dismiss cross-claim (Exhibits on docket #22 different from docket #21) (Former Deputy Clerk) Modified on 10/04/2005

Silvers v. Google, Inc.

Doc. 22

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Palm Beach Division STEVEN A. S ILVERS, an individual, Plaintiffs, v. GOOGLES INC., a Delaware corporation, Defendant. ________________________________________ GOOGLES INC., a Delaware corporation, Counterclaimant, v. STEVEN A. SILVERS, an individual; STELOR PRODUCTIONS, INC., a Delaware corporation; STELOR PRODUCTIONS, LLC; a business Entity of unknown form; and STEVEN ESRIG, An individual, Counterdefendants. ________________________________________ CASE NO. 05-80387-CIV (Ryskamp/Vitunac)

SILVERS' MOTION TO DISMISS STELOR'S CROSS-CLAIM AND SUPPORTING MEMORANDUM
Plaintiff, Steven A. Silvers ("Silvers"), moves to dismiss the cross-claim brought by counter-defendant, Stelor Productions, LLC ("Stelor") pursuant to Rule 12, Federal Rules of Civil Procedure. Stelor is trying to smuggle into this federal trademark infringement action state law contract claims against Silvers under the pretext of a federal declaratory judgment claim, which confers no original jurisdiction in this Court. The cross-claim, which is entirely unrelated to the main case and does not provide a sufficient nexus to support supplemental jurisdiction, should be asserted in the pending breach of contract action filed against Stelor by Silvers in Florida Circuit Court.

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I. BACKGROUND Silvers is the owner of the name "Googles" which he has used as a trademark for over twenty years in connection with goods and services directed to children's education and entertainment. Silvers registered the "Googles" trademark with the United States Patent and Trademark Office in 1997, and by virtue of its long use the trademark has now achieved incontestable status. Silvers also owns and has registered the Internet domain name

"googles.com," which he has used since 1997 for his "Googles" Website. In 2002, Silvers licensed the use of his "Googles" trademark to Stelor Productions, Inc. under a written License Agreement. 1 See Exhibit A. The License Agreement gave Stelor the limited right to commercially develop the "Googles" trademark and Silvers' related intellectual property. The licensing relationship with Stelor, unfortunately, did not fare well because Stelor simply ignored most of its contractual obligations. On January 13, 2005, after three years of Stelor's non-compliance, Silvers terminated the License Agreement. See Exhibit B. Stelor immediately sought to negotiate a reinstatement, and hoping to salvage the relationship, Silvers agreed to withdraw his January 13 termination letter under a Settlement Agreement that required Stelor, among other things, to cure its prior breaches under the License Agreement. 2 Silvers retained the right to reinstate the termination if Stelor did not cure its breaches or perform its other obligations imposed by the Settlement Agreement. Consistent with its prior conduct Stelor failed to cure the breaches or perform under the Settlement Agreement. Therefore, on April 27, 2005 Silvers reinstated the January 13 termination, and reminded Stelor in writing of its post-termination obligations, including

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Stelor Productions, Inc. has apparently assigned its rights under the License Agreement (if any) to the crossclaimant, Stelor Productions, LLC. 2 The Settlement Agreement also settled a pending federal court action between the parities. 2
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providing to Silvers an inventory of licensed products. See Exhibit C. Stelor performed none of those post-termination obligations. On May 5, 2005 Stelor filed a breach of contract claim against Silvers in the district court alleging wrongful termination and requesting the court to enjoin Silvers from terminating the License Agreement (the "License Agreement Action"). On May 27, 2005 Silvers moved to dismiss the License Agreement Action because Stelor failed to list the residence of each of its members on the face of the Complaint as required to establish diversity jurisdiction. In response to Silvers' motion, Stelor filed the sworn declaration of Steve A. Esrig, Stelor's President, in which he stated that none of Stelor's members reside in Florida. Esrig listed the residence of each member but would not identify any member by name. On August 9, 2005 Judge Hurley dismissed the License Agreement Action for lack of subject matter jurisdiction but gave Stelor until August 29, 2005 to amend its Complaint and file evidence to support subject matter jurisdiction. Stelor declined the Court's invitation to file an amended complaint and instead filed a "response" to the dismissal Order sheepishly admitting that in fact diversity does not exist. 3 Silvers' State Court Action Against Stelor On September 6, just a few days after License Agreement Action was dismissed, Silvers filed a breach of contract action against Stelor in Florida Circuit Court for Stelor's failure to perform its post-termination obligations, and seeking to enjoin Stelor from representing itself as Silvers' licensee and using his intellectual property. See Exhibit D. Silvers has filed a Motion For Temporary Injunction and requested an evidentiary hearing. Stelor has not yet filed a response to the Complaint.
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Prior to the dismissal, on July 5, 2005 the district court denied Stelor's request for preliminary injunctive relief holding that Stelor's only remedy for wrongful termination of the License Agreement is money damages; Stelor is not legally entitled to require Silvers to continue to license his property or to perform under the License Agreement or related Settlement Agreement. 3

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This Trademark Infringement Action Against Google, Inc. On May 5, 2005, a week after Stelor was terminated, Silvers filed this action against Google, Inc. ("Google") for trademark infringement arising from the "reverse confusion" caused by Google's adoption and use of a mark almost identical to Silvers' senior "Googles" mark. The central issue in this case is whether under the Lanham Act, 15 U.S.C. § 1051 et seq., Google's use of the "Google" mark for children's goods and services violates Silvers' superior and exclusive rights to use virtually the same mark for the same goods and services. Silvers also challenges the validity of Google's original federal trademark registration because it was fraudulently obtained. Google's Counterclaim In response to the trademark infringement claim, Google filed a trademark infringement counterclaim against Silvers alleging that Silvers use of his "Googles" mark in connection with an alleged "search engine" violates its trademark rights. 4 Google also filed a counterclaim against Stelor as Silvers' licensee, who up until then was not a party to this action. Google may not have known at the time it filed the counterclaim that Silvers had terminated Stelor's license. The factual allegations against Stelor, however, relate to Stelor's conduct prior to termination of the License Agreement and are not affected in any way by the fact that Stelor has since been terminated. Stelor's Cross-Claim On September 9, three days after Silvers filed the state court action, Stelor filed in this action a cross-claim against Silvers asserting basically the same breach of contract claims Judge Hurley dismissed for lack of subject matter jurisdiction, i.e. seeking to reinstate the License Agreement based on Silvers' alleged wrongful termination. But here, Stelor seeks to assert these

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Silvers is unaware that his mark is being used in connection with a search engine, nor has he consented to such use. 4 2525 Ponce de Leon, 9th Floor, Miami, Florida 33134 | Phone [phone] | Fax [phone] | kttlaw.com

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claims under the federal Declaratory Judgment Act. The cross-claim alleges no other basis for original subject matter jurisdiction. II. STELOR'S CROSS-CLAIM SHOULD BE DISMISSED A. There Is No Original Subject Matter Jurisdiction

Stelor's alleged claim under the Declaratory Judgment Act, 28 U.S.C. §2201, et seq., does not provide the Court with subject matter jurisdiction. It is hornbook law that a claim under the Act must independently satisfy the subject matter jurisdiction requirements for an action to be brought in federal court. As put by the Eleventh Circuit: . . . [T]he Declaratory Judgment Act does not, of itself, confer jurisdiction upon the federal courts; a suit brought under the Act must state some independent source of jurisdiction, such as the existence of diversity or the presentation of a federal question. Borden v. Katzman, 881 F.2d 1035, 1037 (11th Cir. 1989) (citing Skelly Oil Co. v. Phillips Co., 339 U.S. 667 (1950)). See also, Kunkler v. Fort Lauderdale Housing Authority, 764 F. Supp 171, 175 (S.D. Fla. 1991) (Act can provide a procedural remedy if, and only if, the court has jurisdiction from another source). Stelor's willful blindness in attempting to premise jurisdiction on the Act is eerily familiar. In the prior action before Judge Hurley, now dismissed, Stelor matter-of-factly alleged diversity of citizenship without disclosing the citizenship of its LLC members, and, when called on it, sheepishly conceded diversity did not exist. 5 B. The Cross-Claim Is Not Sufficiently Related To Support Supplemental Jurisdiction

The Court should decline to exercise supplemental jurisdiction because Stelor's state law breach of contract cross-claim against Silvers has no legal or factual connection to any part of the
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Stelor had previously filed a sworn declaration from Steven A. Esrig, falsely stating that diversity existed. Stelor Productions is a small closely held company with a handful of shareholders or members; the citizenship of each could have been easily determined. 5

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trademark infringement action against Google. Further, the legal and factual questions unique to Stelor's state law cross-claim against Silvers, if allowed to be brought here, will smother the federal trademark claim with a thick layer of non-relevant issues, witnesses and evidence that will undoubtedly distract or confuse the jury, and extend the trial. (1) There is No Sufficient Nexus To The Main Claim

There is no question that original jurisdiction is lacking, thus, jurisdiction over Stelor's cross-claim necessarily depends on supplemental jurisdiction. 28 U.S.C. §1367(a) restricts

supplemental jurisdiction to " . . .claims that are so related to claims in the action within . . .[the court's] original jurisdiction that they form part of the case or controversy under Article III of the United States Constitution." Here, the Court's original jurisdiction is conferred by the federal trademark statute, 15 U.S.C. §1051, et seq. Section 1367(c) goes on to define circumstances in which a district court may decline to exercise its supplemental jurisdiction. The statute therefore contemplates a two-tiered analysis. The first step is to determine whether the claim comes within the Court's power because it is so related to the original action. If so, the second step requires a determination whether that power should be declined. To decide whether Stelor's cross-claim against Silvers is part of the same case or controversy as Silvers' federal trademark action against Google, the Court must consider whether Stelor's cross-claim derives from "a nucleus of operative facts common to" the federal trademark claim and if they are such that it would ordinarily be expected to try them all in one judicial proceeding. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966). In other words, is the state law claim sufficiently related to the jurisdictionally sufficient claim that it is the "same case or controversy?" See Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 455 (11th Cir. 1996)(court should consider whether claims arise from the same facts, or involve similar
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occurrences, witnesses or evidence); Harry Winston, Inc. v. Kerr, 72 F. Supp.2d 263, 264 (S.D.N.Y. 1999)(district court should consider, among other factors, the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims.) This means that Stelor's breach of contract cross-claim against Silvers must be "so related" to Silvers' trademark infringement claim against Google that it arises from the same operative facts or forms part of the infringement claim. Simply stated, the facts that will determine whether Google has infringed Silvers' mark must also determine if Silvers wrongfully terminated the License Agreement. Stelor's cross-claim fails the test. The facts that would support ­ or defeat ­ the crossclaim are not even remotely related to the facts that will determine whether Google has infringed Silvers' trademark rights or resolve the trademark infringement counterclaim. The main trademark infringement claim and counterclaim will narrowly focus on these "likelihood of confusion" issues: (1) type of marks; (2) similarity of the marks; (3) similarity of goods and services; (4) identity of marketing channels and consumers; (5) similarity of advertising; (6) the party's intent; and (7) actual confusion. See Conagra v. Singleton, 743 F.2d 1508 (11th Cir. 1984). Silvers infringement claim also raises legal and factual issues regarding whether Thus, the core of the

Google's original trademark registration was fraudulently obtained.

trademark infringement claims ­ the only claims that arise under federal law ­ will be resolved by a comparison of the trademarks, confusion evidence, and the trademark owners' conduct in adopting, using, and registering the marks. The resolution of the cross-claim, on the other hand, is governed by the contractual language of the License Agreement and will involve factual determinations regarding Stelor's performance as Silvers' licensee, including whether Stelor: (1) failed to place on all licensed
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products the phrase "created by Steven A. Silvers;" (2) failed to pay Silvers royalties; (3) failed to collect revenue from the sale of Licensed Products; (4) diverted revenue to another entity; (5) failed to provide certified royalty statements; (6) failed to provide to Silvers samples of all licensed products, and all promotional and advertising materials associated with those products; (7) failed to include appropriate legal notices with the licensed products; (8) failed to maintain the requisite level of quality for the licensed products; (9) failed to maintain Silvers' intellectual property rights; (10) engaged in the unauthorized creation of characters and use of the "Googles" name; (11) failed to allow Silvers to audit its books and records; (12) failed to provide Silvers with stock options; and (13) failed to perform under a related consulting agreement and settlement agreement. infringement claims. Furthermore, the legal issues involved in the main case differ greatly from those raised in the cross-claim. The trademark claims assert violations of the Lanham Act, raising questions regarding trademark registration procedures, and the validity of the parties' federal trademark registrations. In contrast, the cross-claim requires application of state contract law to the None of these factual issues have any connection to the trademark

interpretation of the provisions in the License Agreement, including Silvers' limitation of liability to Stelor, as well as state law regarding the licensor/licensee relationship posttermination. When one compares the main federal trademark claims to the cross-claim, it is evident that the claims do not raise similar legal issues or flow from the same factual situation. Simply put, the facts needed to prove the cross-claim are vastly different from those needed to prove the main claim. In fact, evidence showing or disproving whether Silvers' wrongfully terminated Stelor will not offer even the slightest insight into whether Google has infringed Silvers' trademark rights. And, contrary to what Stelor wants the Court to believe, even if Stelor
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prevails on its wrongful termination claim, Stelor has no right to pursue this trademark infringement action against Google. Stelor's only remedy for wrongful termination is money damages, not reinstatement of the license. See infra, section 2. Moreover, inclusion of Stelor's cross-claim will create havoc at trial. The evidence, witness testimony, and proof required to resolve Stelor's cross-claim, and the associated remedy and damages calculations, would be mixed in with the evidence, witness testimony and proof needed to resolve the trademark disputes, and the rather complex damages formula applied in reverse confusion cases. Not only would this distract from the main trademark claim, it would cause serious juror confusion that would prejudice Silvers' case against Google. The legal and factual issues in the trademark infringement action are complex enough for a jury to determine. Adding unrelated breach of contract claims between Stelor and Silvers will inject literally dozens of factual issues each with its own evidence for the jury to consider in additional to the seven factor likelihood of confusion issues presented by the main trademark claim. There is no logical relationship between the cross-claim and the main claim; Silvers should not be expected to try them both in one judicial proceeding. See Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. See also Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 455 (11th Cir. 1996)(affirming district court's dismissal of state law breach of contract claim filed with an ERISA claim because of the lack of nexus between the state and federal causes of action.); SemiTech Litigation LLC v. Bankers Trust Company, 234 F.Supp.2d 297 (S.D. N.Y. 2002)(not reasonable to try claims against company for Trust Indenture Act and claims against officers of company for breach of fiduciary duty relating to the indenture in same case.); Singh v. The George Washington University, 368 F.Supp.2d 58 (D.D.C. 2005)(plaintiff's discrimination claim against school for violation of Title III of the ADA had almost no factual overlap with dean of

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school's counterclaim for defamation for statements plaintiff made about him relating to her dismissal and not sufficiently related to warrant exercise of supplemental jurisdiction.). 2. State Law Issues Dominate The Cross-Claim

Even if the Court were to determine that there is enough of a relationship between the trademarks claims and Stelor's breach of contract cross-claim to support supplemental jurisdiction, under the provisions and reasoning of Section 1367(c), the Court should decline that jurisdiction. First, while Stelor's cross-claim does not raise particularly complex issues of state law, it involves strictly state law issues and contract interpretation, and presents at least one novel question. Stelor seeks by way of its cross-claim to be reinstated as licensee and to use Silvers' intellectual property without his consent. Under current Florida law, a party to a contract is only entitled to damages, not reinstatement by way of injunction, where the contract is allegedly wrongfully terminated. See Airlines Reporting Corp. v. Incentive Int'l Travel, Inc., 566 So.2d 1377, 1379 (5th DCA 1990) (no injunctive relief to reinstate cancelled contract, damages only remedy); Shearson Lehman Hutton, Inc. v. Meyer, 561 So.2d 1331, 1332 (5th DCA 1990) (injunctive relief not available to prevent termination of agreement; remedy is damages); Jacksonville Elec. Auth. v. Beemik Bldrs. & Const., Inc., 487 So.2d 372 (1st DCA 1986) (no injunctive relief to prevent cancellation of contract, remedy is damages). What Stelor seeks will require the court to examine the current case law on this issue, and carve out some sort of novel exception to this established rule. 6 Whether the facts and circumstances underlying the

termination entitle Stelor to that exception is best left to the state court to decide. 7

Stelor's cross-claim also raises the issue of whether a terminated licensee may continue to use a licensor' intellectual property after it has been terminated. While federal law has dealt extensively with this issue, (see infra) in the context of the Lanham Act, we know of no state law cases addressing the issue.
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Likewise, Stelor's "breach of warranty" claim depends entirely upon construction of the warranty provision contained in the License Agreement. In an attempt to paint its cross-claim as "related" to the original claim, Stelor 10 2525 Ponce de Leon, 9th Floor, Miami, Florida 33134 | Phone [phone] | Fax [phone] | kttlaw.com

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Furthermore, aside from being a distraction, the inclusion of Stelor's cross-claim in this case is simply unfair and prejudicial to Silvers. He should be able to have his day in court with Google without the Stelor sideshow diluting his case. Stelor can readily pursue its state law claims in state court, where a case is now pending that addresses the very issues Stelor wants decided here. C. The Cross-Claim Should Be Asserted In The Pending State Court Action

It makes absolutely no sense to permit Stelor to assert claims in this action that will be litigated and adjudicated at the same time in the pending state court action. In fact, Stelor's claims are so inextricably intertwined with the claims pending in state court that an adjudication of Silvers' claims in that action will encompass the claims asserted by Stelor in its cross-claim. The state action will determine whether Stelor was in breach of the License Agreement prior to termination, whether Silvers properly terminated Stelor, and whether Stelor breached its posttermination obligations. Stelor's defense to this action is necessarily that Silvers wrongfully terminated the License Agreement, which is the same claim it asserts here in its cross-claim. The factual issues that will resolve whether Silvers properly terminated are the very same factual issues that will resolve the outcome of Stelor's wrongful termination claim. There is no rational basis to inject this unrelated contract dispute between Stelor and Silvers into this trademark case that will decide the exceedingly narrow issue of whether Google has infringed Silvers' trademark. Whether Stelor breached the License Agreement or Silvers wrongfully terminated the License Agreement will not resolve one issue in this pending trademark dispute. In fact, the resolution of Stelor's contract claims will have zero affect on the outcome of the main trademark infringement claim. It makes far more sense to dismiss the cross-claim so that it can be properly asserted and resolved in the Silvers/Stelor action currently pending in state court.
contends that Google's counterclaim alleges that Google, rather than Silvers, owns Silver's mark. (Cross-claim, ¶46). But Google alleges no such thing, nor could it. Google simply claims the use of Silvers' mark for search engine services infringes Google's mark. 11
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III. THE CROSS-CLAIM FAILS TO STATE A CLAIM FOR INJUNCTIVE RELIEF Stelor acknowledges in its cross-claim that Silvers has terminated the License Agreement with Stelor. As explained above, while Stelor is free to dispute the termination, its only remedy should the termination be proved wrongful is for money damages. 8 Stelor has no legal basis for a mandatory injunction to compel specific performance. Injunctive relief is typically not a proper remedy for wrongful termination of a license. For example, in A.L.K. Corp. v. Columbia Pictures Industries, Inc., 440 F.2d 761 (3d Cir. 1971) a movie theatre could not, by injunction, compel a film distributor to specifically perform under a license agreement for the distribution of movies. The only remedy - - loss of income from not showing the subject movie - - was recovery of damages. And in Freeplay Music, Inc. v. Verance Corp., 80 Fed. Appx. 137 (2d Cir. 2003) (unpub.) the court rejected the terminated licensee's request for injunctive relief to reinstate the license because the former licensee's injury could only be redressed with damages. This is why Judge Hurley rejected Stelor's request to preliminarily enjoin Silvers from terminating Stelor. This doctrine is consistent with the long line of Burger King cases from this district, in which the courts routinely reject a terminated franchisee's attempt, by way of injunction, to continue using the Burger King trademarks while contending the termination was wrongful. In these cases, the terminated franchisee's license to use the trademarks cannot be reinstated by way of injunction, and the sole remedy is damages for the alleged wrongful termination. 9
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To the extent Stelor contends that it is entitled to injunctive relief under the provisions of the Settlement Agreement, that argument is moot. Stelor's failure to perform under the Settlement Agreement and Silvers' reinstatement of the termination of the License Agreement renders the Settlement Agreement null and void, and the parties are placed back where they were when Stelor was first terminated. That is why the Settlement Agreement has no remedy provision for breach by either party.

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Cf. Burger King v. Agard, 911 F. Supp. 1499 (S.D. Fla. 1995); Burger King v. Majeed, 805 F. Supp. 994, 1003 (S.D. Fla. 1992); Burger King v. Hall, 770 F. Supp. 633, 638-39 (S.D. Fla. 1991); Burger King v. Austin, Bus. Fran. Guide CCH ¶9788 (S.D. Fla. 1990) 12

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Furthermore, the License Agreement has an express provision that limits Stelor's remedy for wrongful termination to a monetary amount equal to the royalties paid to Silvers during the twelve-month period preceding a breach of contract claim. There is no provision that entitles Stelor to injunctive relief or any other remedy. CONCLUSION Stelor's cross-claim should be dismissed, and the Silvers/Stelor dispute should proceed in state court. Respectfully submitted, Adam T. Rabin (FL Bar #985635) DIMOND KAPLAN & ROTHSTEIN,P.A. 525 South Flagler Drive, Suite 200 West Palm Beach, FL 33401 T: 561-671-2110 s/Gail A. McQuilkin Kenneth R. Hartmann (FL Bar No. 664286) Gail A. McQuilkin (FL Bar No. 969338) KOZYAK TROPIN & THROCKMORTON, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, Florida 33134 T: 305-372-1800

=================================================================== CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by E-mail and U.S. mail on this 3rd day of October, 2005 upon: Jan Douglas Atlas Adorno & Yoss, LLP 350 East Las Olas Blvd., Suite 1700 Fort Lauderdale, FL 33301-4217 E-mail: [e-mail] Kevin C. Kaplan, Daniel F. Blonsky and David Zack Burlington Weil Schwiep Kaplan & Blonsky, PA 2699 S. Bayshore Drive, Penthouse A Miami, FL 33133 E-mail: [e-mail] s/Gail A. McQuilkin Andrew P. Bridges Winston & Strawn, LLP 101 California Street, Suite 3900 San Francisco, CA 94111 E-mail: [e-mail]

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