Krevat v. Burgers To Go - Corporate Officers Liable For Infringement
Krevat v. Burgers To Go - Corporate Officers Liable For Infringement
Krevat v. Burgers To Go - Corporate Officers Liable For Infringement
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Robert David Katz, Esq.
Eaton & Van Winkle LLP
3 Park Avenue, 16th Floor
New York, NY 10016
For Defendants:
of
Plaintiffs
trademarks
hamburger restaurant.
in
connection
with
Defendants
for
leave
to
amend
the
Complaint
is
DENIED
WITHOUT
Factual Background1
Between June 2006 and November 2011, Plaintiff ran and
New
Jersey.
trademarks
with
(Compl.
the
U.S.
10.)
Trademark
Plaintiff
Office
registered
that
he
five
uses
in
(Compl 12
17.)
At some point, Defendants Burgers To Go and Sultan opened
their own kosher hamburger restaurant named Burgers at a location
where Plaintiff formerly operated a Burgers Bar location.
1819.)
(Compl.
(Compl. 18.)
The following facts are taken from the Complaint and are
presumed to be true for the purposes of this Memorandum and
Order.
1
In
addition,
Defendants
frequently
referred
in
and
online
using
restaurant.
his
trademarks
(Compl. 26.)
in
connection
with
their
(Compl.
interest
and
attorneys
fees,
and
an
order
(Compl. at 10-11.)
II.
Procedural Background
This case has a somewhat lengthy procedural history.
Defendants
On November
At the conference,
instructed
the
Clerk
of
the
Court
to
vacate
the
On January 23,
status
conference,
during
which
Sultan
stated
On July 28, 2014, Plaintiff opposed Sultans motion and also filed
a cross-motion for leave to amend the Complaint to allege alter
ego liability against Sultan.
Judge
demonstrated
the
Tomlinson
required
further
elements
concluded
for
the
that
(R&R at
Plaintiff
issuance
of
an
(R&R at 1621.)
Judge
Tomlinsons
R&R
ultimately
recommended:
(1)
that
default
issued
preventing
Burgers
To
Go
from
engaging
in
or
directed
to
turn
over
to
Plaintiff
for
destruction
any
Judge
Tomlinson
recommended,
the
undersigned
deferred
the
Id. at *3.
under
seal
since
it
apparently
contained
sensitive
By Electronic
On
2014.
Defendants
newly
(Docket
retained
Entries
counsel
69-70.)
filed
That
same
day,
letter
to
Judge
[Burgers
when
the
To
Gos]
Court
obligations
expects
to
in
this
receive
matter,
response
Tomlinson
denied
counsels
request
for
telephone
to
Plaintiffs
damages
statement,
and
that
[i]f
(Nov.
still pro se and he did not identify the Federal Rule of Civil
Procedure pursuant to which he seeks dismissal.
He argues that
personally
liable
for
the
actions
of
the
corporation.
The Court
standard
before
turning
to
Sultans
motion
more
specifically.
A.
Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court
Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007);
accord Harris v. Mills, 572 F.3d 66, 7172 (2d Cir. 2009).
First,
tenet
is
inapplicable
to
legal
conclusions;
thus,
Iqbal,
Second, only
Application
As noted, Sultan urges the Court to dismiss all charges
liable
corporate
for
torts
officer
committed
is
not
on
necessarily
behalf
of
the
conscious
infringement.
force
behind
the
defendant
corporations
approved the acts of unfair competition which are the basis of the
corporations liability is sufficient to subject the officer to
personal liability.
officer was either the sole shareholder and employee, and therefore
must have approved of the infringing act, or a direct participant
in the infringing activity, the officer is a moving, active,
conscious, force behind the corporations infringement.
See
activity,
is
the
moving,
active
conscious
force
Moreover, Plaintiff
that
the
defendants
10
cease
unauthorized
use
of
See
[the]
[p]laintiff
spoke
with
[the
defendant
corporate
not
reproduce
her
copyrighted
images
without
was
moving,
defendant
corporations]
original)
(internal
Accordingly,
active,
infringement
quotation
Plaintiff
conscious
has
marks
stated
and
a
force
(last
behind
alteration
citation
claim
[the
for
in
omitted)).
trademark
It is
In
any event, numerous courts have held that a bare request to amend
a pleading contained in a brief, which does not also attach the
proposed amended pleading, is improper under Fed. R. Civ. P. 15.
11
motion
so
that
both
the
Court
and
opposing
parties
can
The
12
defendant
has
the
opportunity
to
contest
the
amount.
right
to
participate
at
this
Burgers To Go
potential
hearing
prejudice
if
Burgers
To
Go
is
permitted
to
respond
to
Burgers
response
To
File
to
file
statement.
13
to
Plaintiffs
damages
CONCLUSION
For the foregoing reasons, Sultans motion to dismiss
(Docket Entry 44) is DENIED; Plaintiffs cross-motion for leave to
file an amended complaint (Docket Entry 54) is DENIED WITHOUT
PREJUDICE; and Burgers To Gos motion for permission to file a
response to Plaintiffs damages statement against Burgers To Go
(Docket Entry 77) is GRANTED.
SO ORDERED.
March
23 , 2015
Central Islip, New York
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