AMERICAN AUTOMOBILE ASSOCIATION, INC. v. AAA AUTOMOTIVE PARTS et al

Filing 116

ENTRY denying Defendant's 98 Motion for Reconsideration ; denying 106 Motion to Strike ; denying 107 Motion to Dismiss; denying 112 Motion to Seal Case; denying 113 Motion For Order. ***SEE ORDER*** (Copy to Defendant via U.S. Mail) Signed by Judge William T. Lawrence on 12/14/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
THE AMERICAN AUTOMOBILE
ASSOCIATION, INC.,
Plaintiff,
vs.
MICHAEL WALLER,
Defendant.

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) Cause No. 1:16-cv-2890-WTL-MPB
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ENTRY ON PENDING MOTIONS
This cause is before the Court on numerous motions, each of which is addressed, in turn,
below.
Filings by Defendant Michael Waller
In the months since the Court’s last Entry addressing the motions that were pending at
that time, Defendant Michael Waller has made the following filings:
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Dkt. No. 86: Judgement of God

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Dkt. No. 87: Writ of Certiorari to the Supreme Judge of the World

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Dkt. No. 90: Declaration of Moses

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Dkt. No. 91: Errata

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Dkt. No. 92: Declaration of Moses

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Dkt. No. 93: Declaration of the Heavens

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Dkt. No. 94: Declaration of Matthew

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Dkt. No. 95: Award of Execution for the First Order of God’s Judgement

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Dkt. No. 96: Declaration of God

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Dkt. No. 97: Errata

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Dkt. No. 98: Motion to Reconsider

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Dkt. No. 99: Order to Show Cause

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Dkt. No. 105: Declaration of God

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Dkt. No. 106: Motion to Strike

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Dkt. Nos. 107 & 108: Alternative Motion to Dismiss and brief in support

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Dkt. No. 112: Motion to Seal Case

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Dkt. No. 113: Order

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Dkt. No. 115: Untitled Document

As their titles suggest, many of these filings relate to Waller’s alter ego, God, and Waller’s claim
that as God it is he, not the Court, who has the authority to make rulings and render judgment in
this case. To the extent that any of these filings constitutes a motion, none of them has any merit
and each is DENIED. To the extent that these filings are not motions, but rather purport to be
orders or judgments of some kind, they have no legal effect.
Plaintiff’s Motion for Summary Judgment
The Plaintiff has filed a motion for summary judgment (Dkt. No. 100) against
“Defendant Michael Waller and his sole proprietorship, AAA Automotive Parts” on various
claims. In a nutshell, the Plaintiff alleges that Waller’s use of the name “AAA Automotive
Parts” for his business, as well as other uses of variations of “AAA” in conjunction with that
business, constitutes infringement of various trademarks owned by the Plaintiff.
Proper Defendant
As an initial matter, “[a] proprietorship is not a legal entity, but merely a name under
which the owner, who is the real party in interest, does business.” Jeroski v. Fed. Mine Safety &
Health Review Comm’n, 697 F.3d 651, 652 (7th Cir. 2012) (citing York Group, Inc. v. Wuxi
Taihu Tractor Co., 632 F.3d 399, 403 (7th Cir. 2011); Bartlett v. Heibl, 128 F.3d 497, 500 (7th
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Cir. 1997)). Therefore “[a] sole proprietorship . . . is not a suable entity separate from the sole
proprietor.” Bartlett, 128 F.3d at 500. The only proper defendant in this case is Waller. The
Court has conformed the caption accordingly, and the Clerk is directed to correct the docket as
well.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that 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.” Because Waller has failed to respond to the Plaintiff’s
motion for summary judgment in any substantive manner, the facts asserted by the Plaintiff in its
motion are deemed admitted by Waller to the extent that they are supported by evidence in the
record. See Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012) (citations omitted).
“However, a nonmovant’s failure to respond to a summary judgment motion . . . does not, of
course, automatically result in judgment for the movant.” Id. (citations omitted). Rather, the
moving party, here the Plaintiff, must still demonstrate that it is entitled to judgment as a matter
of law. See id.1
Waller is proceeding pro se in this litigation, and the Plaintiff provided him with the
notice required by Local Rule 56-1(k). See Dkt. No. 102.
Relevant Facts
The following facts are asserted by the Plaintiff in its Statement of Material Facts Not in
Dispute and properly supported by the evidence of record.
AAA has used certain marks in commerce since 1902 in connection with

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Thus, the Plaintiff’s Motion for Summary Ruling (Dkt. No. 110) must be DENIED.
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automobile products and services. AAA has registered more than one hundred trademarks with
the United States Patent and Trademark Office (“USPTO”), including the following (hereinafter
referred to collectively as “the AAA Marks”:2
a. Reg. No. 0,829,265: AAA, registered May 23, 1967 for inter alia, “providing
emergency road service,” “arranging for discount purchases,” and “collecting
damage claims” in Class 35 and “automobile association services rendered to
motor vehicle owners, motorists, and travelers generally-namely, obtaining motor
vehicle license plates and title certificates” and “conducting motor vehicle tests
and making tests of automotive and related products” in Class 42.
b. Reg. No. 2,158,654: AAA & Design, registered February 24, 1998 for, inter
alia, “magazines, pamphlets, booklets, and directories in the field[] of . . . vehicle
information and repair” in Class 16, “arranging for discount purchases” in Class
35, “emergency road services” in Class 37, and “consumer product safety testing
and consultation, namely, conducting motor vehicle tests and endurance tests, and
making tests of automotive and related products” in Class 42.
c. Reg. No. 3,316,227: AAA & Design, registered October 23, 2007 for
“indicating membership in a(n) automobile membership club” in U.S. Class 200.
d. Reg. No. 1,168,790: TRIPLE A, registered September 8, 1981 for “automobile
association services-namely, promoting the interests of motor vehicle owners,
motorists and travelers, and sponsoring programs for the promotion of pedestrian
safety and related public service activities” in Class 42.
e. Reg. No. 3,046,904: AAA, registered January 17, 2006 for “glass repair
services for vehicles” in Class 37.
f. Reg. No. 3,046,905: AAA & Design, registered January 17, 2006 for “glass
repair services” in Class 37.
g. Reg. No. 3,102,319: AAA & Design, registered June 6, 2006 for “batteries for
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In one of his filings, Waller moves to strike the Plaintiff’s evidence regarding its
registered trademarks on the ground that it has not provided an affidavit of authenticity from the
USPTO. Regardless of what might be required to authenticate a document for admission at trial,
“[e]vidence submitted on summary judgment ‘need not be admissible in form (for example,
affidavits are not normally admissible at trial), but it must be admissible in content.’” Hardrick
v. City of Bolingbrook, 522 F.3d 758, 761 (7th Cir. 2008) (quoting Stinnett v. Iron Works
Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002)). The exhibits submitted by
the Plaintiff in support of its motion for summary judgment satisfy this requirement. If Waller
believed that any of them were not authentic, he could have objected to them on that basis
pursuant to Federal Rule of Civil Procedure 56(c)(2). He did not.
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use in motor vehicles” in Class 9.
h. Reg. No. 5,036,379: AAA & Design, registered September 6, 2016 for, inter
alia, “magazines, pamphlets, booklets, and directories in the field[] of . . . vehicle
information and repair” in Class 16, “administration of a discount program for
enabling participants to obtain discounts on goods and services through use of a
discount membership card” in Class 35, “emergency road side repair services” in
Class 37, and “consumer product safety testing and consultation, namely,
conducting motor vehicle tests and endurance tests, and making tests of
automotive and related products” in Class 42.
i. Reg. No. 1,449,079: AAA APPROVED AUTO REPAIR & Design, registered
July 21, 1987 for “automobile repair services” in Class B.
j. Reg. No. 3,604,164: AAA TOTAL REPAIR CARE, registered April 7, 2009
for “arranging for discounted automobile repair services for members of an
association” in Class 35, “motor vehicle diagnosis and repair services” in Class
37, and “arranging for transportation of individuals whose vehicles are under
repair” in Class 39.
AAA uses the AAA Marks to identify automotive services provided by AAA and
its approved service providers, including those that provide emergency road services and auto
repair services, as well as to distinguish such products and services from those not affiliated with
or endorsed by AAA. AAA invests millions of dollars each year in advertising and promotion,
including on AAA-affiliated websites. As a result of its marketing efforts, AAA earns tens of
millions of dollars in revenue each year; it has grown to over fifty million members; and its
marks are among the most recognizable in the country. The AAA Marks have developed
recognition and fame throughout the United States, including in Indiana, in connection with the
automotive goods and services offered by AAA. AAA has filed lawsuits to prevent others from
using its trademarks in related

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fields, such as automotive services and parts, but has not filed lawsuits to prevent others from
using its trademarks as protected speech or in unrelated fields, such as arbitration,3 banking, or
bond rating.
Waller owns the AAA Automotive Parts business as a sole proprietorship, which markets
automotive parts and related services in Indiana and throughout the United States. Waller exerts
control over and makes all decisions related to AAA Automotive Parts. Waller uses the domain
name TRIPLEAPARTS.COM (“the Website”) to advertise and promote the AAA Automotive
Parts business. Waller uses AAA’s logo on the Website. AAA Automotive Parts’ customers
include some of AAA’s approved service providers and repair shops, to which AAA Automotive
Parts has offered discounts. By Waller’s own admission, many customers have perceived,
erroneously, a connection between AAA and AAA Automotive Parts because “[a]round a
hundred [repair] shops” have contacted AAA after learning about discounts offered to AAAapproved repair shops by AAA Automotive Parts. Dkt. No. 11 at 3 ¶ 3. The Plaintiff has not
authorized Waller to use its marks.
In or around June 2016, AAA discovered Waller’s unauthorized use of the AAA
Automotive Parts business name and the use of TRIPLEAPARTS.COM for the Website. The
Plaintiff sent a letter to the domain name registrant for the Website, which was returned by the
United States Postal Service as undeliverable. The Plaintiff reported that fact to the Internet
Corporation for Assigned Names and Numbers (“ICANN”), and on or around September 1,
2016, ICANN suspended the TRIPLEAPARTS.COM domain name registration based on the

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The Plaintiff presumably included this fact in response to Waller’s insistence in various
filings that the AAA Marks are not valid because “AAA” has other meanings, including as an
abbreviation for the American Arbitration Association and as a bond rating. Unlike Waller, the
American Arbitration Association and the bond market do not compete in the automotive market
in which the Plaintiff operates.
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Plaintiff’s report. On or around October 17, 2016, Waller reinitiated use of the AAA Marks on
the Website. On December 2, 2016, Waller offered to sell the TRIPLEAPARTS.COM domain
name to the Plaintiff for $250,000. Since the initiation of this lawsuit, Waller has registered at
least the following new domain names: AAAPARTS.NET; AAAPARTSCARD.COM;
AAAPARTSNETWORK.COM; TRIPLEDPARTS.COM; TRIPLEAPARTS.NET; and
AMERICANPARTSASSOCIATION.COM.
Discussion
The Plaintiff alleges that Waller’s use of variations of “AAA Automotive Parts,” “AAA,”
“TRIPLEA,” and the AAA logo in conjunction with his auto parts business infringes upon its
trademarks and constitutes unfair competition in violation of the Lanham Act, 15 U.S.C. §§
1114(1) and 1125(a), and Indiana common law.
The Lanham Act established a federal right of action for trademark infringement
to protect both consumer confidence in the quality and source of goods and
businesses’ goodwill in their products. A trademark is any word, name, symbol,
or device, or any combination thereof, used to identify a person’s good and to
distinguish it from those goods manufactured or sold by others. 15 U.S.C. § 1127.
Section 32 specifies a cause of action for the unauthorized use of a registered
trademark. As relevant here, that section renders a person liable in a civil suit
when he “use[s] in commerce any reproduction, counterfeit, copy, or colorable
imitation of a registered mark in connection with the sale, offering for sale,
distribution, or advertising of any goods or services on or in connection with
which such use is likely to cause confusion, or to cause mistake, or to deceive[.]”
§ 1114(a). More broadly, section 43(a) of the Act creates a remedy against a
person who engages in unfair competition by, inter alia, falsely designating the
origin of a product. Section 43(a)(1), in relevant part, imposes liability on “[a]ny
person who, on or in connection with any goods or services ... uses in commerce
any word, term, name, symbol, or device, or any combination thereof, or any false
designation of origin, ... which—(A) is likely to cause confusion, or to cause
mistake, or to deceive ... as to the origin, sponsorship, or approval of his or her
goods, services, or commercial activities by another person ... .” § 1125(a)(1)(A).
To prevail on either type of claim, a plaintiff must be able to show (1) that its
mark is protectable, and (2) that the defendant’s use of that mark is likely to cause
confusion among consumers.

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Phoenix Entm’t Partners v. Rumsey, 829 F.3d 817, 822 (7th Cir. 2016) (some internal quotation
marks and citations omitted). A claim for unfair competition under Indiana common law is
analyzed in the same manner. See Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 763 F.3d
696, 700 (7th Cir. 2014).
In this case, the Plaintiff has demonstrated that its trademarks are protectable. All of the
trademarks listed above have been registered with the United States Patent and Trademark
Office, and all but one of them was registered more than five years ago. “Once a mark has been
used for five years following registration, it becomes ‘incontestable.’” Eco Mfg. LLC. v.
Honeywell Int’l, Inc., 357 F.3d 649, 651 (7th Cir. 2003) (quoting 15 U.S.C. § 1065).
“Incontestability is ‘conclusive evidence of the validity of the registered mark and . . . the
registrant’s exclusive right’ to use the mark in commerce.” Id. (quoting 15 U.S.C. § 1115(b)).
And while trademark “protection dissipates if the mark becomes generic,” id., Waller has
presented no evidence which would support a finding that any of the marks at issue have become
generic.4 Thus, the uncontested evidence of record establishes as a matter of law that the
registered trademarks listed above are protectable, thus satisfying the first element of the
Plaintiff’s trademark infringement and unfair competition claims.
In order to prevail on its claims, the Plaintiff must also demonstrate that the defendant’s
use of the marks is likely to cause confusion among consumers.
Seven factors comprise the likelihood of confusion analysis: (1) similarity
between the marks in appearance and suggestion; (2) similarity of the products;
(3) the area and manner of concurrent use; (4) the degree of care likely to be
exercised by consumers; (5) the strength of the plaintiff’s mark; (6) whether
actual confusion exists; and (7) whether the defendant intended to “palm off” his
product as that of the plaintiff. The likelihood of confusion test is an equitable
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While the mark that was not registered more than five years ago does not enjoy
“incontestable” status, the result is the same, as the fact that it is registered is prima facie
evidence that it is valid, and Waller has not presented any evidence to the contrary. Matal v.
Tam, 137 S. Ct. 1744, 1753 (2017).
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balancing test. No single factor is dispositive and courts may assign varying
weights to each of the factors depending on the facts presented. In many cases,
however, three of the factors are likely to be particularly important: the similarity
of the marks, the defendant’s intent, and actual confusion.
CAE, Inc. v. Clean Air Eng’g, Inc., 267 F.3d 660, 677-78 (7th Cir. 2001). In this case, the
undisputed evidence of record demonstrates the following: (1) the marks are identical or very
similar in appearance and suggestion; (2) the products offered by Waller and the Plaintiff are
similar, in that both are automotive in nature; (3) both Waller and the Plaintiff operate their
businesses nationwide, including over the internet; (4) the relative accessibility and inexpensive
nature of automotive products and services suggests that consumers will not use more than an
ordinary degree of care in discriminating between various sources of those products and services;
(5) the Plaintiff’s marks are exceptionally strong; and (6) Waller has cultivated the perception
that his business is related to the Plaintiff by offering a discount to AAA members. With regard
to the final factor, whether Waller intended to “palm off” his company as affiliated with the
Plaintiff,
In some circumstances, an intent to confuse may be reasonably inferred from the
similarity of the marks where the senior mark has attained great notoriety. If the
marketing and business presence of the senior mark . . . is nearly ubiquitous in
the geographic area where the junior mark competes, a trier of fact can easily
conclude that the creator of a strikingly similar junior mark intended to confuse.
AutoZone, Inc. v. Strick, 543 F.3d 923, 934 (7th Cir. 2008) (citation omitted). Such is the
situation here. Thus, the undisputed facts of record demonstrate that each of the relevant factors
support a finding of likelihood of confusion.
Because the Plaintiff has submitted evidence from which a reasonable trier of fact could
find in its favor on its trademark infringement and unfair competition claims, and that evidence is
uncontroverted, the Plaintiff is entitled to summary judgment on those claims. Further, as
discussed below, because the Plaintiff is entitled to all of the relief it seeks in this case as a result

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of its success on its trademark infringement and unfair competition claims, the Court need not
examine its remaining claims of trademark dilution and cyberpiracy. Cf. Elliott v. Bd. of Sch.
Trustees of Madison Consol. Sch., 2017 WL 5988226, at *3 (7th Cir. Dec. 4, 2017) (“Although
the district court based its final judgment only on Elliott’s federal-law theory and not his statelaw theories, Elliott received the full relief that his state-law theories could have provided, so
nothing more needed to be decided.”).
Propriety of Injunctive Relief
The Plaintiff asks the Court to enter a permanent injunction enjoining Waller from using
its marks. A permanent injunction is appropriate when the Plaintiff has shown (1) success on the
merits; (2) irreparable harm; (3) that the benefits of granting the injunction outweigh the injury to
the defendant; and, (4) that the public interest will not be harmed by the relief requested. ADT
Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 672 F.3d 492, 498 (7th Cir. 2012). The
Plaintiff has made each of these showings here. The Plaintiff has succeeded on the merits with
regard to its trademark infringement and unfair competition claims and Waller’s unauthorized
use of the AAA Marks has and will continue to cause the Plaintiff irreparable harm, as it
prevents the Plaintiff from controlling the quality of goods and services linked to its marks in the
minds of consumers and from protecting its goodwill and reputation. See Kraft Foods Grp.
Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735, 741 (7th Cir. 2013)
(“[I]rreparable harm is especially likely in a trademark case because of the difficulty of
quantifying the likely effect on a brand of a nontrivial period of consumer confusion.”). The
benefit to the Plaintiff of preventing the continuation of this irreparable harm outweighs the
injury to Waller, as any such injury—the necessity of changing the name of his business, domain
name, etc.—is caused solely by Waller’s own improper use of the Plaintiff’s marks. And,
finally, the injunction sought by the Plaintiff will benefit the public, protecting it from being
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misled into believing that Waller’s business has been given a stamp of approval from the
Plaintiff. Accordingly, the Court will enter the injunction requested by the Plaintiff.
Plaintiff’s Request for Attorneys’ Fees and Costs
In addition to injunctive relief, the Plaintiff requests an award of its attorneys’ fees and
costs. As the prevailing party in this case, the Plaintiff is entitled to recover its costs. Federal
Rule of Civil Procedure 54(d)(1). In addition, the Lanham Act provides for an award of
attorneys’ fees to the prevailing party in “exceptional cases.” 15 U.S.C. § 1117(a). The Seventh
Circuit has held that “a case under the Lanham Act is ‘exceptional,’ in the sense of warranting an
award of reasonable attorneys’ fees to the winning party, if the losing party was . . . the
defendant and had no defense yet persisted in the trademark infringement or false advertising for
which he was being sued, in order to impose costs on his opponent.” Nightingale Home
Healthcare, Inc. v. Anodyne Therapy, LLC, 626 F.3d 958, 963-64 (7th Cir. 2010).
It should be enough to justify the award if the party seeking it can show that his
opponent’s claim or defense was objectively unreasonable—was a claim or
defense that a rational litigant would pursue only because it would impose
disproportionate costs on his opponent—in other words only because it was
extortionate in character if not necessarily in provable intention. That should be
enough to make a case “exceptional.”
Id. at 965.
In this case, Waller offered no real defense to the Plaintiff’s trademark claims. Instead,
he repeatedly made frivolous filings, culminating in his adoption of his alter ego—God—and the
filing of documents that purport to be declarations of various Biblical figures, see, e.g., Dkt. Nos.
92 & 93, as well as a document purporting to be a money judgment (for billions of dollars) in his
own favor, even though he no longer had any pending counterclaims, Dkt. No. 86, and
documents in which he describes the Plaintiff as “demons from Hell possessing human bodies”
or similar epithets, see, e.g. Dkt. Nos. 92-94. These filings were made after the Court

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admonished Waller that he was moving perilously close to having restrictions placed on his
filings due to his penchant for frivolous filings. Waller has behaved in an objectively
unreasonable fashion and his actions have vastly increased the cost of this litigation to the
Plaintiff and to the taxpayers. Thus, this is an exceptional case, and the Plaintiff is entitled to an
award of reasonable attorneys’ fees pursuant to 15 U.S.C. § 1117(a), the amount of which will be
determined by the applicable post-judgment procedures.
SO ORDERED: 12/14/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copy by United States Mail to:
MICHAEL WALLER
800 West 11th Street
Bloomington, IN 47404
Copies to all counsel of record via electronic notification

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