Professional Documents
Culture Documents
1.4g Response
1.4g Response
Plaintiff;
v.
Case No. 1:23-cv-00037-TWP-MG
NORTH CENTRAL INDUSTRIES, INC., an
Indiana corporation; GREAT GRIZZLY,
INC., an Indiana corporation; and R.
BROWN, INC., a Montana corporation;
Defendants.
1.4g Holdings, LLC (“Plaintiff” or “1.4g”), by and through its undersigned counsel,
hereby oppose Defendant R. Brown, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction
and Defendants’ Joint Motion to Dismiss, In Part, For Failure to State a Claim (brief at ECF No.
I. INTRODUCTION
Mark Brown’s (“Mr. Brown’s”) 1 remarkable representations support, rather than vitiate,
this Court’s exercise of jurisdiction over R. Brown, Inc. (“R. Brown”). Mr. Brown
acknowledges that R. Brown is a licensee of Indiana entity Great Grizzly, Inc. (“Great Grizzly”,
which does not contest personal jurisdiction) and co-licensee with Indiana entity North Central
Industries, Inc. (“NCI”, which does not contest personal jurisdiction either) and that R. Brown
itself sold goods infringing at least Plaintiff’s TIKI mark. Mr. Brown then describes a
1
There appear to be a number of men with the surname Brown involved in Defendants’
management, but as Mark Brown is the principal declarant in support of the Motion, Plaintiff
will characterize him as “Mr. Brown”.
1
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relationship between R. Brown and Great Grizzly that makes no sense in the absence of apparent
inexplicable nonfeasance (such as being named as a corporate treasurer but readily admitting that
“I do not actually do work as Treasurer of Great Grizzly and never have”; ECF No. 22-1 at ¶ 18).
The most logical conclusion that can be drawn from the entirety of Mr. Brown’s declaration is
that R. Brown and Great Grizzly are effectively alter egos and R. Brown is thus susceptible to
general personal jurisdiction in Indiana. This Court is bound to resolve all factual discrepancies
Defendant R. Brown—and allow this case to move forward if a prima facie case of personal
jurisdiction may be demonstrated from the record, 2 and the level of factual discrepancies created
a lack of minimum contacts by R. Brown with Indiana that are effectively contradicted by a
logical examination of Mr. Brown’s declaration certainly create a level of factual ambiguity that
With respect to Defendants’ motion to dismiss claims arising from Plaintiff’s XL mark,
Plaintiff pled all necessary facts to put Defendants on notice of a plausible theory by which
Defendants may be held liable for infringement. This is not a situation in which Plaintiff and
Defendants are in two completely different industries, selling two completely different types of
goods or services, as is the case in virtually all of Defendants’ cited case law: the Complaint
makes clear that Plaintiff owns the mark XL for use with fireworks, and that Defendants are
using the mark XL in commerce on fireworks. Defendants admit in Defendants’ briefing that
Defendants use “XL” on Defendants’ fireworks packaging (ECF No. 22 at 3, fn.4). While there
may be a question as a matter of law following discovery regarding whether Plaintiff’s and
Defendants’ uses of “XL” create a likelihood of confusion, there can be no reasonable dispute
that Plaintiff has met basic notice-pleading requirements and stated a claim for relief.
2
Bilek v. Fed. Ins. Co., 8 F.4th 581, 589 (7th Cir. 2021).
2
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Ultimately, there is little that Defendants contest in the Motion: merely whether R.
Brown, Inc. (“R. Brown”) is susceptible to general personal jurisdiction in Indiana based on what
appears to be R. Brown’s effective control over Great Grizzly, and whether Plaintiff adequately
pled Plaintiff’s intellectual-property-tort causes of action with respect to one of Plaintiff’s three
trademarks at issue. This case will proceed to discovery on, at a minimum, Plaintiff’s claims
against Defendants Great Grizzly, Inc. (“Great Grizzly”) and North Central Industries, Inc.
(“NCI”) regarding Plaintiff’s marks TIKI and GHOST and associated intellectual property. If
this Court has any question that, when all factual disputes are resolved in favor of Plaintiff, the
record does not reflect a prima facie showing of personal jurisdiction with respect to R. Brown,
Plaintiff requests jurisdictional discovery with respect to R. Brown. Further, if this Court does
not believe sufficient notice has been provided to Defendants of exemplars of Defendants’ own
infringing goods, Plaintiff requests the opportunity to file an amended complaint identifying all
known species of Defendants’ goods with respect to which Plaintiff seeks redress.
II. FACTS
Plaintiff is a Nevada-based company that designs, imports, and engages in wholesale and
retail sale of consumer-grade fireworks. ECF No. 1. Defendants NCI and Great Grizzly are
Indiana-based companies that design, import, and engage in wholesale sale, at a minimum, of
Great Grizzly’s licensee for the design, import, and wholesale of consumer-grade fireworks, ECF
No. 22-1 at ¶ 11, and whose president, Mr. Brown, is the treasurer of Great Grizzly. ECF No. 1.
R. Brown allegedly does no business in Indiana, “does not sell any Great Grizzly products
developed by NCI”, ECF No. 22-1 at ¶ 22, and has only had one intercompany product sale
Plaintiff relevantly owns three registered trademarks in the scope of use of “fireworks”:
TIKI, GHOST, and XL. ECF No. 1 at ¶ ¶ 16-19. Defendants have infringed all three trademarks
in the packaging and sale of Defendants’ own fireworks, id. at ¶ ¶ 25-71, and have also infringed
3
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Plaintiff’s trade dress through Defendants’ goods sold under TIKI-inclusive and GHOST-
inclusive marks. ECF No. 1 at ¶ ¶ 82–93. Plaintiff exhibited to Plaintiff’s Complaint photos of
exemplars of one TIKI-inclusive and one GHOST-inclusive infringing trade dress, not intended
in any way to be exhaustive depictions of all of Defendants’ accused goods, the full scope of
In Defendant R. Brown’s motion to dismiss the Complaint under FRCP 12(b)(2), Mr.
“22. NCI develops its own products via its license with Great
Grizzly. R. Brown is not involved in NCI’s development of Great
Grizzly products and does not sell any Great Grizzly products
developed by NCI.” (the “NCI Independence Representation”)
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“26. The only product including the word “Tiki” that R. Brown
has sold was the “Tiki Bar” 90 Shot Roman Candle. That product
has been has never been [sic] sold or shipped to Indiana and is no
longer sold by R. Brown.” (the “Tiki Bar Representation”;
collectively with the Limited Interactions Representation, the
Website Control Representation, and the Treasurer Representation,
the Indiana Travel Representation, and the NCI Independence
Representations, the “Brown Representations”).
multiple respects.
III. STANDARDS
12(b)(2).
Purdue Research Found. v. Sanofi–Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003), quoting
Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002) and Nelson v. Park Industries, Inc.,
717 F.2d 1120, 1123 (7th Cir. 1983). Thus, at this time, this Court may assert personal
jurisdiction if the record reflects a prima facie showing of personal jurisdiction over R. Brown,
with all disputes resolved in Plaintiff’s favor. While the Seventh Circuit has not expressly
addressed the issue of incredible assertions made in a defendant’s declarations, logic dictates, as
the Ninth Circuit has recognized, that incredible assertions by a defendant may effectively be
disregarded by the Court as supportive of that defendant’s position, a test the Ninth Circuit
expressly described as consistent with the Seventh Circuit’s standard of resolving all factual
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disputes in the plaintiff’s favor. Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d
1325, 1326–1326 (9th Cir. 1985), citing Neiman v. Rudolf Wolff & Co., 619 F.2d 1189, 1190 (7th
Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005). “The federal rules require… only that the
complaint state a claim, not that it plead the facts that if true would establish (subject to any
defenses) that the claim was valid.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). There is
Defendants’ authority does not support a change in this standard. Defendants rely on
Fortres Grand Corp. v. Warner Bros. Entertainment Inc., 763 F.3d 696 (7th Cir. 2014) as their
only in-circuit authority for the notion that Plaintiff cannot demonstrate a plausible claim for
relief under Ashcroft v. Iqbal, 556 U.S. 662 (2009), unless the face of the Complaint itself allows
3
Defendants take issue with the fact that Plaintiff only provided photographic exhibits of two
species of Defendants’ accused goods, without apparently recognizing that those exhibits are (a)
exemplary only and (b) related to Plaintiff’s trade dress claims, not mark infringement claims.
6
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Church & Dwight Co., 560 F.2d 1325 (7th Cir. 1977). Fortres Grand does not impose such a
requirement, however. Fortres Grand arose from a highly idiosyncratic set of facts: the plaintiff
software company owned the mark CLEAN SLATE for a cybersecurity program used to wipe
user data from shared public computers. 763 F.3d at 698. A plot device in Warner Bros.’ film
The Dark Knight Rises is a secret internet tool called “the clean slate” that “enables an individual
to erase all traces of her criminal past from every database on earth.” Id. at 699. Fortres Grand
allegedly experienced a notable drop in CLEAN SLATE sales after The Dark Knight Rises’
release and sued Warner Bros. for mark infringement, alleging likelihood of confusion that
either through traditional or reverse confusion, to the film’s “the clean slate”. The Northern
District of Indiana dismissed for failure to state a claim, and the Seventh Circuit affirmed. “The
problem here,” the Seventh Circuit held, “is that Fortres Grand wants to allege confusion
regarding the source of a utilitarian desktop management software based solely on the use of a
mark in a movie and two advertising websites… Fortres Grand has alleged no facts that would
make it plausible that a super-hero movie and desktop management software are ‘goods related
in the minds of consumers in the sense that a single producer is likely to put out both goods.’” Id.
at 703–704 (internal citation omitted). In no way does Fortres Grand require, as Defendants
advocate, that sufficient facts be pled to allow a Helene Curtis analysis at the motion-to-dismiss
level in every mark infringement case. This is not a case involving a plaintiff and defendants in
two different industries, placing two completely different types of goods (such as, on one hand,
cybersecurity software, and, on the other, a Batman movie) into commerce, so that the
plausibility of asserted consumer confusion is not facially apparent. In this case, as Plaintiff
made clear in the Complaint, Plaintiff owns the XL Mark for use with fireworks. ECF No. 1 at ¶
18. Defendants have used and are using the XL Mark in commerce for use with fireworks. Id. at
¶ 28. It is effectively axiomatic that a company using a mark in a narrow scope of use states a
plausible trademark infringement claim against a company using the same mark in the same
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support dismissal. The out-of-circuit D.B.C. Corp. v. Nucita Venezolana, C.A., 464 F. Supp. 3d
1323 (S.D. Fla. 2020) and Public Free Will Corp. v. Verizon Communications Inc., case no. 15-
CV-6354-RRM-JO, 2017 U.S. Dist. LEXIS 39168, 2017 WL 1047330 (E.D.N.Y. March 17,
2017), are factually and legally inapposite. In D.B.C., the Southern District of Florida
specifically grappled with a complaint that named five different defendants (including a
corporation) and never singled out which of the defendants was liable for the mark infringement
in question. There was no question in the court’s mind from the complaint that the accused
marks, PIRULIN and PIRUCREAM, were being used in commerce for cookies. The problem,
decried by the court throughout the opinion, was that the plaintiff pled every cause of action
against all five defendants, and it was logically impossible that, e.g., both the Venezuelan and
Dominican defendants could have been responsible for the use in United States commerce of
PIRULIN and PIRUCREAM. Indeed, Defendants in this case do not argue that Plaintiff failed to
engage in such a distinction. Finally, in the unpublished Public Free Will, the Eastern District of
New York dismissed a mark infringement complaint by an organization that did not even
demonstrate that the organization owned the mark or had used it in commerce. These factual
scenarios are far afield from the situation present here: one company is accusing three other
companies in a niche industry of intellectual property infringement and misappropriation with
respect to the extremely narrow scope of use in which all the parties have used Plaintiff’s
intellectual property.
IV. ARGUMENT
The Complaint has already set forth allegations supporting personal jurisdiction over R.
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Brown. ECF No. 1 at ¶¶ 8–14. The Complaint asserts claims of intellectual property
intercompany enmeshment. Id. at ¶¶ 7–14. Plaintiff’s trademarks TIKI, GHOST, and XL, and
trade dress with respect to TIKI- and GHOST-marked goods, have been infringed by Defendants
in goods bearing Defendants’ house mark GREAT GRIZZLY. Id. at ¶¶ 42–61, Exhibits 3-4
(ECF Nos. 1-3 and 1-4). R. Brown is an exclusive licensee of an Indiana corporation—Great
Grizzly—and effectively shares assets with Great Grizzly in the form of, without limitation, the
11. Thus, inferentially, all of the accused goods emanating from Defendants bear the trademark
of a registered Indiana corporation, and that corporation, by all appearances, is a close affiliate of
R. Brown acknowledges additional facts highly relevant to this Court’s jurisdiction. First,
R. Brown acknowledges that R. Brown is a licensee of Great Grizzly and sells fireworks under
the GREAT GRIZZLY mark. ECF No. 22 at 4. Second, R. Brown acknowledges infringement,
at a minimum, of Plaintiff’s TIKI mark. 4 Id. at 5; see also July 3, 2022 communication from
John Brooke, Esq. to undersigned counsel, attached hereto as Exhibit 1. As discussed further
infra, it is impossible to conclude otherwise than that R. Brown obtained the accused TIKI-
R. Brown further admits facts that highlight its apparent entanglement with, at a
minimum, Great Grizzly, and support that R. Brown’s presence in Indiana is more pervasive than
4
Throughout the Motion, Defendants appear to be operating under the misapprehension that
Defendants’ only infringing goods that are the subject of this lawsuit are the exemplars whose
photographs are exhibits to the Complaint. This is false. Plaintiff is suing for all instances of
infringement of Plaintiff’s TIKI, GHOST, and XL marks. Defendants are presumably quite
capable of looking at Defendants’ inventory and catalogs and identifying all instances of usage
of each of these marks.
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R. Brown argues. Specifically, R. Brown further admits, via the declaration of R. Brown’s
president Mark Brown (ECF No. 22-1), that it is actually R. Brown that controls and operates the
website reposed at <greatgrizzly.net>. ECF No. 22-1 at ¶ 15. Mr. Brown further admits that Mr.
Brown is, indeed, the treasurer of Great Grizzly, an Indiana corporation—although Mr. Brown
denies that Mr. Brown actually does anything in that regard, a curious assertion discussed infra.
ECF No. 22-1 at ¶ 18. Viewing these assertions in the light most favorable to Plaintiff, as this
Court must do, it appears at least plausible that, at a minimum, Great Grizzly is acting effectively
as R. Brown’s alter ego (notwithstanding Great Grizzly’s status as the licensor of the GREAT
GRIZZLY mark), without observance of corporate formalities, and Great Grizzly’s connection to
Indiana and general jurisdiction therein may be imputed to R. Brown, which utilizes the GREAT
GRIZZLY mark and resources even though the licensing entity is held out to the public as an
Indiana corporation.
3. The Brown Representations Are Only Explainable If R. Brown And
Given that this Court must resolve all factual disputes in Plaintiff’s favor to assess
whether Plaintiff has made a prima facie case of personal jurisdiction, and that incredible
assertions may be disregarded in favor of Defendants and construed in favor of Plaintiff, multiple
assertions in Mr. Brown’s declaration warrant this Court’s conclusion that R. Brown has a
If Mr. Brown is to be believed that, presumably since no later than 2017 when Mr. Brown
became president of R. Brown (ECF No. 22-1 at ¶ 2), the “very limited interactions” between
putative co-exclusive licensee R. Brown and licensor Great Grizzly “have only consisted of a
few phone calls”, the only credible explanation is that the relationship between R. Brown and
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Great Grizzly is so enmeshed, with an absence of observance of corporate formalities, that they
may be viewed as one and the same for jurisdictional purposes. It is not credible to assert that a
licensor and licensee (even a co-exclusive licensee) engage in no more “interactions” than “a few
phone calls” over at least five years. Most notably, if this was actually true, Mr. Brown—who
admits that he is the treasurer of Great Grizzly and is thus at least potentially a fiduciary as a
matter of law of Great Grizzly, see In re Atkins, 16 N.E.3d 950 (Ind. 2014)—has admitted facts
that raise a question of whether Great Grizzly has abandoned the GREAT GRIZZLY mark
If Great Grizzly’s level of quality control over R. Brown’s use of the GREAT GRIZZLY
mark amounts to “a few phone calls” since 2017, Great Grizzly may have abandoned the
trademark altogether, and Mr. Brown’s admission of same to this Court is at best unwise and
potentially a breach of his fiduciary duties as the treasurer of Great Grizzly. 5 The Seventh Circuit
has consistently held that a naked license abandons a mark and will arise unless “the control
retained by the licensor [is] sufficient under the circumstances to insure that the licensee’s goods
or services would meet the expectations created by the presence of the trademark.” Eva’s Bridal,
Ltd. v. Halanick Enterprises, Inc., 639 F.3d 788, 790 (7th Cir. 2011), quoting RESTATEMENT (3D)
OF UNFAIR COMPETITION § 33, comment (a) (1995) (other citations omitted). “Trademark law
requires that ‘decisionmaking authority over quality remains with the owner of the mark.’” Id.,
quoting RESTATEMENT § 33, comment (c). Nowhere in the Brown Dec. is any explanation of the
nature of the license agreement between R. Brown and Great Grizzly—and it is difficult to
fathom how “very limited interactions” in the form of “a few phone calls” can give rise to any
informed decisionmaking by Great Grizzly with respect to the quality of goods sold under the
GREAT GRIZZLY mark. There are three possibilities: (1) Mr. Brown is not fully disclosing all
of the communications between Great Grizzly and R. Brown; (2) Mr. Brown has admitted, as a
5
As discussed infra, it is incredible—literally, not credible—that Mr. Brown holds the title of a
corporate fiduciary but does nothing in that role, unless R. Brown, Great Grizzly, and potentially
even NCI are so enmeshed without observance of corporate formalities that they may be
considered the same for purposes of general jurisdiction in Indiana.
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fiduciary of Great Grizzly, that Great Grizzly has abandoned its mark; and/or (3) there is some
level of enmeshment or identity between Great Grizzly and Brown that actually makes a few
phone calls over five years “sufficient under the circumstances” to avoid a naked license. Such a
level of alter-ego identity could give rise to R. Brown’s potential liability for Great Grizzly’s
torts, particularly given that R. Brown admits to having sold allegedly infringing TIKI-marked
goods in commerce that R. Brown could only have received from Great Grizzly or NCI, as
discussed in greater detail infra. See Gaskins v. Vencor, Inc., case no. IP 99-1122-C T/G, 2011
U.S. Dist. LEXIS 10671 (S.D. Ind. July 1, 2001). This Court is entitled to resolve this factual
investigate this highly unlikely scenario of a purported co-exclusive licensee somehow being so
engaged with the licensor that “a few phone calls” are all that is necessary to maintain the
relationship.
business is so difficult to reconcile with any explanation other than corporate enmeshment that
this Court may view same as further evidence supporting a prima facie case of Indiana
jurisdiction for R. Brown. For reasons that Mr. Brown does not explain, even though the mark
GREAT GRIZZLY is owned by Great Grizzly, an Indiana corporation, that domain name
resolves to R. Brown’s website, and Mr. Brown acknowledges that “Great Grizzly has no role in
creating or maintaining that website.” ECF No. 22-1 at ¶ 15. WHOIS records for
<greatgrizzly.net> are redacted for privacy except for the state of the registrant, which is listed as
Montana. Exhibit 2 at 2. This is yet another instance of either an admission against interest by
purported Great Grizzly treasurer Mr. Brown to what looks like, at best, a naked license, or,
more likely, further evidence of the corporate alter ego relationship between R. Brown and Great
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an Indiana corporation—are not susceptible to a sensible factual resolution consistent with the
existence of two discrete entities respecting corporate formalities, and this Court may thus
construe this factual dispute in Plaintiff’s favor. Mr. Brown’s candid admission that Mr. Brown’s
“role as Treasurer of Great Grizzly is really in name-only [sic], as I do not actually do work as
Treasurer of Great Grizzly and never have” (ECF No. 22-1 at ¶ 18) is inexplicable unless: (a)
Great Grizzly is inappropriately holding out Mr. Brown as a corporate officer with the
knowledge that Mr. Brown is not actually fulfilling the requirements of that job, and/or (b) R.
Brown’s and Great Grizzly’s affairs are so intertwined that the two entities are effectively
inseparable. It is a venerable proposition of corporate law that “the legal presumption is that
corporations, officers, and men faithfully discharge the duties imposed upon them and act within
their powers.” Mine & Smelter Supply Co. v. Stockgrowers’ Bank, 173 F. 859, 855 (8th Cir.
1909). If Mr. Brown truly does nothing in his role as Great Grizzly treasurer, the most
reasonable explanation for such nonfeasance is that Great Grizzly is part of an inappropriately
enmeshed closely held bundle of entities with respect to which corporate formalities are not
observed, but which contains an entity: (a) holding itself out to the public as having been
organized under Indiana law, and (b) owning and licensing intellectual property under licensing
agreements that are presumably governed by Indiana law. Plaintiff respectfully requests that this
Court view Mr. Brown’s assertions in the light most favorable to Plaintiff and find that R. Brown
allow jurisdictional discovery by Plaintiff as to the rationale for Mr. Brown’s appointment as an
officer of a company in a state Mr. Brown has purportedly never even visited on business and
with which company Mr. Brown purportedly has only exchanged “a few phone calls.” ECF No.
22-1 at ¶ 13.
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This Court may further resolve in Plaintiff’s favor the incredible factual assertion that
neither Mr. Brown nor anyone else at R. Brown has traveled to Indiana “for any business
reason.” Once again, Mr. Brown appears to be suggesting to this Court that there is absolutely no
connection between Great Grizzly and R. Brown so that the exercise of Indiana jurisdiction over
R. Brown would be not only unjust but fairly ludicrous. Yet, R. Brown admits to being Great
Grizzly’s licensee, to ownership and control of the content reposed at the domain
possible in 2023 for these circumstances to be true without travel being required, but then query
why it is necessary to qualify that travel by Mr. Brown and others at R. Brown to Indiana
occurred, but not “for any business reason”. Query further why the qualification also excludes
having engaged in business-related communications or tasks while present in Indiana for other
discussion and coordination of business. This assertion may thus be viewed by this Court in the
light most favorable to Plaintiff: not credible and supportive of a finding of general personal
Ultimately, the most jurisdictionally relevant admission by Mr. Brown, when viewed in
light of Mr. Brown’s other admissions, is that R. Brown admittedly sold TIKI-trademarked
accused goods—even though if Mr. Brown’s declaration was 100 percent true, it is unclear how
R. Brown could have acquired them. Despite purportedly lacking any shared “offices, officers, or
other business connections” with NCI (ECF No. 22-1 at ¶ 21), and not “sell[ing] any Great
Grizzly products developed by NCI” (id. at ¶ 22), and having no “business relationship” with
NCI other than a sale by R. Brown of GREAT GRIZZLY-trademarked goods in 2019 to NCI (id.
at ¶ 24), R. Brown somehow came into possession of TIKI BAR-marked Roman candles that R.
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Brown agreed to relabel after receiving a cease-and-desist letter from Plaintiff’s counsel in
summer 2022. Exhibit 1.6 There are only two possible explanations for this phenomenon: (1)
Mr. Brown’s declaration reflects materially misleading omissions regarding the relationships
between R. Brown, NCI, and Great Grizzly; or (2) R. Brown actually designed and sold
infringing goods bearing Plaintiff’s TIKI trademark, but based on a potential misinterpretation of
the Complaint, Mr. Brown’s declaration is premised on the notion that Defendant’s only accused
goods are those bearing the mark TIKI BOMB, not TIKI BAR. If the correct explanation is (1),
then this Court may view Mr. Brown’s assertions in the light most favorable to Plaintiff and find
that there is an ongoing supply-chain relationship between R. Brown on the one hand and Great
Grizzly and/or NCI on the other that allows a finding of personal jurisdiction over R. Brown in
part as discussed infra, and this Court may again view R. Brown’s acquisition of TIKI BAR-
Plaintiff has already made of record all the facts in Plaintiff’s knowledge regarding the
propriety of personal jurisdiction over R. Brown, and has demonstrated that Mr. Brown’s
declaration raises more questions than it answers. Plaintiff believes that this Court is capable of
finding on this record that a prima facie case has been made for R. Brown to be subject to
personal jurisdiction in Indiana. Plaintiff can do no more without the ability to conduct
jurisdictional discovery. Plaintiff has clearly met the requirements for same as set out in the
Northern District of Indiana’s Andersen v. Sportmart, Inc., 179 F.R.D. 236 (N.D. Ind. 1998):
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179 F.R.D. at 241–242. Mr. Brown’s declaration may be viewed by this Court as having created
ample ambiguity and unclarity regarding jurisdiction. On the one hand, R. Brown purportedly
only has offices, facilities, and personnel in Montana, does not sell fireworks into Indiana, and
rarely interacts with Great Grizzly. On the other, a critical reading of Mr. Brown’s carefully
jurisdiction in Indiana as the alter ego of Great Grizzly, and, at a minimum, depositions of Mr.
Brown regarding the Declaration and persons most knowledgeable for Great Grizzly and NCI
regarding corporate structure are necessary. Plaintiff thus respectfully requests that if this Court
has any doubt that, resolving all factual disputes in Plaintiff’s favor, a prima facie finding of
personal jurisdiction with respect to R. Brown is lacking, this Court grant jurisdictional
and requests for admissions, and to take up to three depositions, including that of Mr. Brown,
prior to this Court’s adjudication of R. Brown’s Motion to Dismiss under FRCP 12(b)(2).
B. Defendants Are Clearly On Notice Of Defendant’s Infringing Use Of XL.
Plaintiff has pled that Plaintiff owns the federally registered XL mark for use with
fireworks and that Defendants are also using the mark XL in connection with fireworks, thereby
establishing a plausible likelihood of confusion between Plaintiff’s and Defendants’ goods. This
is all that is necessary, even under Defendants’ cited case law, as discussed at length supra. The
Seventh Circuit has held even post-Iqbal that “the plaintiff must give enough details about the
subject-matter [sic] of the case to present a story that holds together.” Swanson v. Citibank, N.A.,
614 F.3d 400, 404 (7th Cir. 2010). Plaintiff has done so: Plaintiff owns a trademark for use with
fireworks, and Defendants are using that trademark in commerce, on fireworks, without
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Plaintiff’s permission, and thereby are creating a likelihood of confusion with respect to
Defendants’ fireworks’ source. It is unclear how this is not “a story that holds together.”
Defendants’ assertion that Defendants do not know how Defendants are using the XL
Mark on Defendants’ own products stretches credulity. Indeed, in footnote 4, Defendants make
clear that Defendants have used the XL Mark, albeit, as Defendants would have it, “generically
to indicate the size of certain fireworks products.” ECF No. 22 at 3, fn.4. Presumably Defendants
have the ability to review Defendants’ catalogs and inventory and determine which species of
goods are sold with packaging bearing the XL Mark. Those constitute the set of accused goods.
Defendants are in a far better position than Plaintiff to make a more specific determination.
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V. CONCLUSION
For the reasons set forth herein, Plaintiff respectfully requests that this Court deny the
Motion in the entirety, or, alternately, (a) grant jurisdictional discovery with respect to R. Brown
and/or (b) grant Plaintiff leave to file a first amended complaint to make more detailed
allegations regarding the XL Mark (and, if this Court believes it necessary, any other accused
Philip R. Zimmerly
Attorney No. 30217-06
111 Monument Circle, Suite 2700
Indianapolis, Indiana 46204
(317) 684-5000; (317) 684-5173 (Fax)
[email protected]
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Case 1:23-cv-00037-TWP-MG Document 24 Filed 03/14/23 Page 19 of 19 PageID #: 140
CERTIFICATE OF SERVICE
I hereby certify that on March 14, 2023, a copy of the foregoing was filed electronically.
Notice of this filing will be sent to the following parties by operation of the Court’s electronic
filing system. Parties may access this filing through the Court’s CM/ECF system.
Meaghan K. Haller
Alex E. Gude
Jessica L. Meek
DENTONS BINGHAM GREENEBAUM LLP
2700 Market Tower, 10 West Market Street
Indianapolis, IN 46204-4900
[email protected]
[email protected]
[email protected]
John H. Brooke
Brooke & Struble, P.C.
112 East Gilbert Street
Muncie, Indiana 47305
[email protected]
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