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Superior Performers, Inc. v. Family First Life, LLC

United States District Court, M.D. North Carolina

July 9, 2015

SUPERIOR PERFORMERS, INC. d/b/a NATIONAL AGENTS ALLIANCE, Plaintiff,
v.
FAMILY FIRST LIFE, LLC, and SHAWN L. MEAIKE, Defendants.

MEMORANDUM OPINION AND ORDER

JAMES A. BEATY, District Judge.

This matter is currently before the Court on the Motion for Preliminary Injunction [Doc. #33] filed by Plaintiff Superior Performers, Inc. ("Plaintiff" or "NAA"), in which Plaintiff seeks to have the Court enjoin Defendants Family First Life, LLC and Shawn Meaike (collectively "Defendants") from using Plaintiff's NAA service mark. Defendants filed a Response in Opposition to the Motion [Doc. #41], to which, the Plaintiff filed a Reply [Doc. #53]. For the reasons discussed below, the Court will deny Plaintiff's Motion for Preliminary Injunction.

I. BACKGROUND

Plaintiff is an independent marketing organization and a managing general agent to various insurance companies. Plaintiff recruits and trains agents to sell insurance and assists those agents in becoming qualified representatives of the insurance companies for which Plaintiff acts as an independent marketing organization and managing general agent. Meaike was one such agent employed by Plaintiff. As part of his employment, Meaike was subject to both an Agent Agreement and Management Marketing Agreement with Plaintiff. Meaike's Agent Agreement contained the following provision relating to the termination of his employment with Plaintiff, which required Meaike to:

i. Immediately deliver to NAA all property and materials including but not limited to all business and technical information under this Section, regardless of whether or not it is confidential or proprietary which pertains to or belongs to NAA®.
ii. Immediately cease holding himself or itself out as being affiliated with NAA® in any way, including without limitation, through use of internet websites, internet addresses, e-mail addresses, business cards, use of NAA®'s name, trademarks and logo, and so forth; and
iii. Immediately transfer to NAA® any URL, domain name or website identification utilizing the intellectual property of NAA®, including without limitation the initials "NAA®."

(Amend. Compl. [Doc. #45], at ¶ 13.)

On December 12, 2013, Meaike notified the Plaintiff that he was terminating his employment. Plaintiff asserts that prior to Meaike ending his employment with Plaintiff, Meaike formed FFL and actively recruited other agents employed by Plaintiff to join FFL. FFL is an independent marketing organization that engages in the sale of life insurance. Plaintiff's Amended Complaint alleges that since Meaike left his employment with Plaintiff and formed FFL, the Defendants have used certain marks belonging to Plaintiff in infringing ways. Specifically, Plaintiff alleges that Defendants used the Plaintiff's service marks "Family Protection Center" (hereinafter "FPC Mark") and "Mortgage Protection Center" (hereinafter "MPC Mark") on and in their materials to promote the sale of services and insurance products. Additionally, Plaintiff alleges that Defendants have also used Plaintiff's NAA service mark[1] (hereinafter "NAA Mark") in the source code of the Defendants' website in order to divert consumers searching for NAA from Plaintiff's websites to Defendants' website.[2] Based on this alleged infringing conduct, Plaintiff asserts claims for breach of contract, trademark infringement pursuant to the Lanham Act, unfair competition and false designation of origin pursuant to the Lanham Act, common law infringement, unfair or deceptive business practices, and common law unfair competition.

Plaintiff has now filed a Motion for Preliminary Injunction, in which it seeks to have the Court enjoin Defendants from using the NAA Mark in any context, including within the Defendants' website's source code. Additionally, Plaintiff requests that the Court also require Defendants to post the following message on its website:

If the search that directed you to this site included the term "NAA, " you should not have been directed here as there is no affiliation between FFL and that term. The mark "NAA" is a trademark of a different insurance marketing organization, National Agents Alliance, which can be found at www.naaleads.com.

(Mem. in Support of Motion for Prelim. Inj. [Doc. #37], at 2.) The Court notes that Plaintiff is not seeking a preliminary injunction in relation to Defendants' alleged use of the FPC Mark or the MPC Mark. For the reasons more fully stated below, this Court will deny Plaintiff's Motion for Preliminary Injunction.

II. DISCUSSION

As stated above, Plaintiff asserts that Defendants have used the NAA Mark in the source code[3] for Defendants' website. Specifically, Plaintiff asserts that the Defendants inserted the term "NAA Resources" in its source code as an "alt tag." Plaintiff alleges that "alt tags" are a particular type of source code that search engines look for when compiling websites in response to an Internet search. As a result of "NAA Resources" being embedded as an "alt tag" on Defendants' website, Plaintiff asserts that Defendants' website was being listed in response to searches for NAA's products and services and in response to searches from persons interested in getting started in the life insurance business.[4] Plaintiff asserts that this is a violation of Plaintiff's rights in its NAA Mark, and it seeks a preliminary injunction from this Court to prevent Defendants from continuing to use the NAA Mark in any context, including within the Defendants' website's ...


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