Clean Control Corporation v. Simpson

Filing 13

ORDER denying 11 Motion to Dismiss. FURTHER ORDERED that on or before fifteen (15) days from entry of this Order, the Defendant shall file Answer or otherwise make appearance in this action in compliance with all applicable rules of practice and procedure. Signed by District Judge Martin Reidinger on 04/25/13. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13cv31

CLEAN CONTROL CORPORATION,
Plaintiff,
vs.
TERRY D. SIMPSON, d/b/a
TS Products Online,
Defendant.
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ORDER

THIS MATTER is before the Court on the Defendant’s Motion to
Dismiss [Doc. 11].
PROCEDURAL HISTORY
This action was initiated by the Plaintiff on February 14, 2013 alleging
claims of trademark infringement, cybersquatting, and unfair competition
pursuant to the Lanham Act as well as common law claims. [Doc. 1]. In
the Complaint, it is alleged that the Plaintiff is the owner and continuous
user of United States Patent and Trademark registration No. 3956561 for
LETHAL. [Id. at 1-3]. It is also alleged that the Plaintiff uses this mark in
connection with hunting, fishing and outdoor related scent elimination

products, bug sprays, attractants and cleaners. [Id. at 1]. The Defendant is
alleged to be making junior use of the mark LETHAL HUNT and a
corresponding domain LETHALHUNT.COM in connection with the online
sale of hunting, fishing, camping and outdoor related products. [Id.]. That
use, it is alleged, infringes on the Plaintiff’s mark and has caused and is
likely to continue to cause confusion. [Id.].
The Defendant appeared pro se on April 1, 2013, by filing the
pending Motion to Dismiss. [Doc. 11]. The Plaintiff timely filed a response
in opposition to the motion. [Doc. 12].
DISCUSSION
It is first noted that the Rules of Practice and Procedure of the United
States District Court for the Western District of North Carolina require that
supporting legal briefs be filed contemporaneously with motions.

Local

Rule 7.1(C). The Defendant did not file a brief in support of the Motion to
Dismiss. For this reason alone, the motion must be dismissed.
In the motion, the Defendant basically recounts facts in support of his
position that he is not infringing the Plaintiff’s mark and discloses attempts
by the parties to resolve the issues between them. [Doc. 11]. The Plaintiff
also poses questions to the Court therein. [Id.].

It is unclear on what

grounds the motion is based but it is best construed as a motion to dismiss
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for failure to state a claim. Fed.R.Civ.P. 12(b)(6). The Plaintiff refers in the
motion to matters which are outside the scope of the Complaint, which is
not allowed pursuant to the Federal Rules of Civil Procedure. Fed.R.Civ.P.
12(d).
For these reasons the Motion to Dismiss must be denied.

The

Defendant is cautioned that should he elect to continue to appear pro se in
this matter, he must abide by the rules of procedure as well as the rules of
this Court.
ORDER
IT IS, THEREFORE, ORDERED that the Defendant’s Motion to
Dismiss [Doc. 11] is hereby DENIED.
IT IS FURTHER ORDERED that on or before fifteen (15) days from
entry of this Order, the Defendant shall file Answer or otherwise make
appearance in this action in compliance with all applicable rules of practice
and procedure.
Signed: April 25, 2013

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