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Rags to Royals v. Rags 2 Royalty Rescue, Inc.

United States District Court, W.D. North Carolina, Asheville Division

February 22, 2019

RAGS TO ROYALS, Plaintiff,
v.
RAGS 2 ROYALTY RESCUE, INC., and ROBIN UNDERWOOD BOWDEN, Defendants.

          MEMORANDUM OF DECISION AND ORDER

          Martin Reidinger United States District Judge

         THIS MATTER is before the Court on Defendants' Motion to Dismiss Amended Complaint for Lack of Venue [Doc. 21] and Plaintiff's Motion for Leave to File Second Amended Complaint [Doc. 26].

         I. PROCEDURAL AND FACTUAL BACKGROUND

         On February 13, 2018, Plaintiff Rags to Royals (“Plaintiff”) filed this action against Defendants Rags 2 Royalty Rescue, Inc., (“Defendant Royalty”) and Robin Underwood Bowden (“Defendant Bowden”) (collectively, “Defendants”), alleging trademark infringement, false designation of origin, infringement of registered mark, and cybersquatting. [Doc. 1 at ¶¶ 34-46, 47-59, 60-72, 74-8]. The Defendants filed a motion to dismiss the Complaint for “lack of venue.” [Doc. 10]. Thereafter, the Plaintiff filed a motion to amend the Complaint, which the Court granted. [Docs. 13, 16]. In response, the Defendants filed the present motion to dismiss the Amended Complaint for “lack of venue.” [Doc. 21]. In turn, the Plaintiff filed a motion to again amend the Amended Complaint. [Doc.26].

         According to the Amended Complaint, Plaintiff is a non-profit corporation organized under the laws of the State of North Carolina with a business address in Buncombe County, North Carolina. [Doc. 1 at ¶ 1]. The Plaintiff operates an animal rescue and adoption service. [Id. at ¶ 10]. Defendant Royalty is a non-profit corporation organized under the laws of the State of North Carolina with a business address in Cumberland County, North Carolina, which is in the Eastern District of North Carolina. [Id. at ¶ 2]. Defendant Robin Underwood Bowden is an individual residing in Cumberland County, North Carolina. [Id. at ¶ 3, 18]. Defendant Bowden is the individual who formed the Defendant Royalty corporate entity that operates an animal rescue and adoption service. [Id. at ¶¶ 18-9].

         On November 22, 2016, the Plaintiff obtained a federal trademark registration, Registration No. 5086545, for “RAGS TO ROYALS” in connection with:

Adoption services for domestic animals; Animal adoption service, namely, arranging for dogs and cats from shelters to be placed in homes; Animal rescue services, namely, arranging for the adoption of rescued animals; Providing a web site featuring listings and photographs of pets available for adoption and related information concerning pet adoption; Providing information about pet adoption.

[Id. at ¶ 11; 20-2 at 1]. The Plaintiff alleges that it adopted the “RAGS TO ROYALS” mark in February of 2016, having begun its animal rescue and adoption service in 2011. The Plaintiff also alleges that it has expended considerable time and money engaging a large and dedicated following, including nearly 90, 000 Facebook users from around the world. [Id. at ¶ 13].

         In May of 2017, Defendant Bowden created a Facebook page using the “RAGS 2 ROYALTY” mark and posted for adoption a dog named “Piper” for which she was providing animal rescue and adoption services. [Id. at ¶¶ 16-7].[1] In June of 2017, Defendant Bowden formed Defendant Royalty as a North Carolina non-profit corporation and continued to operate the Facebook page utilizing the “RAGS 2 ROYALTY” mark. [Id. at ¶¶ 18-9]. In January of 2018, the Plaintiff discovered the Defendants use of the “RAGS 2 ROYALTY” mark and requested that the Defendants cease all use of the of the “RAGS 2 ROYALTY” mark due to its confusing similarity to Plaintiff's “RAGS TO ROYALS” mark. [Id. at ¶¶ 22, 28]. The Defendants did not cease use of the “RAGS 2 ROYALTY” mark. Instead, the Defendants filed a trademark application for “RAGS2ROYALTY RESCUE” and launched a website utilizing the “RAGS 2 ROYALTY” mark in the URL. [Id. at ¶¶ 25-9].

         The Plaintiff alleges that the Defendants' use of the “RAGS 2 ROYALTY” mark infringes on Plaintiff's mark in that it is likely to cause confusion between the two respective animal rescues and that confusion has already occurred. [Id. at ¶¶ 30-31]. Specifically, the Plaintiff alleges:

On or about August 27, 2017, Defendants hosted an adoption event in or near Fayetteville, North Carolina. One of the participants at that event posted photographs on Facebook of the event and tagged Rags to Royals in the post, stating, “Rags To Royals Rescue is here with puppies too.” In fact Rags to Royals was not in attendance at the event. Defendants were promoting Adoption Services at the event.

[Id. at ¶ 31]. Despite Plaintiff's requests, the Defendants have declined to cease use of the “RAGS 2 ROYALTY” mark, resulting in the filing of this action. [Id. at ¶ 33].[2]

         The Defendants now move to dismiss the Plaintiff's Amended Complaint pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure for “lack of venue.” [Doc. 21]. In response to the Defendants' Motion, the Plaintiff filed a Motion for Leave to File Second Amended Complaint [Doc. 26], which the Defendants oppose ...


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