United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge
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].
PROCEDURAL AND FACTUAL BACKGROUND
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].
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
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].
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]. 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 ¶¶
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].
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 ...