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McGuire v. Ihangtvs.Com, LLC

United States District Court, N.D. Alabama, Southern Division

April 15, 2019




         This matter comes before the court on Defendants, LLC and Ferlando Parker's motion to dismiss. (Doc. 16). Plaintiff Burton McGuire d/b/a Nice Guys TV Mountings filed the instant action against Defendants on September 28, 2018, alleging violations of the Anti-Cybersquatting Protection Act, § 43 of the Lanham Act. (Doc. 1 at ¶¶ 16-26). The complaint also alleged violations of Alabama's Trademark Act and Alabama tort law. (Doc. 1 at ¶¶ 27-38). All parties reside in Alabama, so Plaintiff asserts federal question jurisdiction under the federal Lanham Act. (Doc. at ¶ 4).

         In their motion to dismiss and brief in support, Defendants argue that Plaintiff insufficiently pled all the elements of a violation of the Anti-Cybersquatting Protection Act and moves this court to dismiss Counts I and II pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 17 at 4-12). Defendants also move this court to dismiss Plaintiff's common law tort claim for failure to state a claim and to dismiss all claims against Defendant Ferlando Parker as insufficiently alleging wrongdoing against him as an individual. (Doc. 17 at 12-15).

         For the reasons stated below, the court will GRANT Defendant's motion to dismiss Plaintiff's ACPA claim as insufficiently pled. But the court will also GRANT Plaintiff leave to amend its complaint to address the deficiencies this Memorandum Opinion identifies. Because the court's subject matter jurisdiction in this case relies on Plaintiff's ACPA claim, the court declines to consider any of Defendants' alternative arguments for dismissal until it receives Plaintiff's amended complaint on the jurisdictionally dispositive cause of action.


         Plaintiff Nice Guys TV Mountings began operation as a television and home theater installation service in late 2015. It began using the trade name “Nice Guys TV Mounting” in December 2015; registered that trade name with the Alabama Secretary of State on January 4, 2016; and purchased the domain name www.niceguystvmountings.comsometime in early 2016. Since then, Nice Guys has used that domain name as the company's website for the purposes of advertising its services to potential customers. (Doc. 1 at ¶ 7). Nice Guys alleges it has incorporated its name in all of its “other marketing and business promotional materials” and that the trade name “has developed a distinctive and widespread recognition in the marketplace.” (Doc. 1 at ¶ 8).

         Although the complaint does not specify the timing, Nice Guy alleges that after it launched its business and website “[m]ore than one customer informed Nice Guys that when they typed in a URL containing the phrase ‘niceguystvmounting,' they were directed to or, a competitor's website”. (Doc. 1 at ¶ 10).

         The website www.wehangtvs.comallegedly belongs to Defendants, LLC, Nice Guys' direct competitor, and Ferlando Parker,'s president and owner. Nice Guys alleges that, “just months” after Nice Guys began operations and launched its website, Defendants registered domain names similar to plaintiff's domain names:,, and (Doc. 1 at ¶ 11).

         Nice Guys allegedly contacted Defendants to request that they forfeit ownership of the three domain names, but Defendants refused. Nice Guys alleges that after contacting Defendants to request they forfeit the domain names, Defendants re-registered the three domain names in July 2018, with full knowledge that Nice Guys had registered the trade name and trademark with the Alabama Secretary of State.

         Nice Guys subsequently filed this lawsuit and moved for a preliminary injunction. Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6).


         A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. Generally, the Federal Rules of Civil Procedure require only that the complaint provide “‘a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide the grounds of her entitlement, but Rule 8 generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards nor do pleadings suffice that are based merely upon “labels or conclusions” or “naked assertions” without supporting factual allegations. Twombly, 550 U.S. at 555, 557.

         The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting and explaining its decision in Twombly, 550 U.S. at 570). To be plausible on its face, the claim must contain enough facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557). If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claim must be dismissed. Id.

         III. ...

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