Case 1:23-cv-00037-TWP-MG Document 22 Filed 02/28/23 Page 1 of 18 PageID #: 98

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

1.4G HOLDINGS, LLC, a Nevada )

limited-liability company, )
)
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. )

BRIEF IN SUPPORT OF 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

Defendant R. Brown, Inc. (“R. Brown”) should be dismissed from this lawsuit because this

Court lacks personal jurisdiction over it. Additionally, Plaintiff 1.4g Holdings, LLC’s (“1.4g”)

claims against Great Grizzly, Inc. (“Great Grizzly”), North Central Industries, Inc. (“NCI”), and

R. Brown for alleged infringement of the “XL” trademark should be dismissed for failure to state

a claim.

INTRODUCTION

1.4g brings trademark infringement, false designation of origin, and misappropriation of

commercial properties claims against all three Defendants concerning three trademarks: the “Tiki

Mark,” the “Ghost Mark,” and the “XL Mark.” (Filing No. 1 at 3, ¶¶ `16–18.) This Motion seeks

dismissal as to (1) Defendant R. Brown for lack of personal jurisdiction under Federal Rule of

Civil Procedure 12(b)(2); and (2) claims against all three Defendants regarding the XL Mark for

failure to state a claim under Rule 12(b)(6) (i.e., Count III for registered mark infringement under

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15 U.S.C. § 1114(A)(1) of the Lanham Act and Count VI for misappropriation of commercial

properties, to the extent Count VI encompasses the XL Mark) (Filing No. 1 at 9, 13).1

R. Brown is a Montana corporation through-and-through. It was formed in Montana, its

principal office is in Montana, its shareholders and officers live in Montana, and it was served in

this lawsuit in Montana. (Exhibit 1 to this Brief, Declaration of Mark Brown (“Brown Decl.”),2 ¶¶

2–6); Filing No. 8 at 1 (Affidavit of Service); Filing No. 8-3 at 1 (Proof of Service).) Yet 1.4(g)

attempts to hale R. Brown into Indiana where it has virtually no contacts—R. Brown is not

registered to do business in Indiana, does not have offices in Indiana, does not have employees

who have ever been to Indiana for business purposes, does not advertise in Indiana, never has made

any wholesale or retail sales to Indiana, and never has sold or shipped any of the allegedly

infringing fireworks products to Indiana (or anywhere else). (Brown Decl. ¶¶ 7, 8, 19, 27, 28.) Due

process requires dismissal of R. Brown from this lawsuit outright.

Even if R. Brown is not dismissed for lack of personal jurisdiction, 1.4(g)’s claims against

R. Brown regarding the XL Mark should be dismissed for failure to state a claim. Claims regarding

the XL Mark should also be dismissed for failure to state a claim as to Great Grizzly and NCI.

In stark contrast to 1.4(g)’s claims regarding the Ghost Mark and the Tiki Mark—for which

1.4(g) described and attached to the Complaint comparative photos of 1.4(g)’s products and

Defendants’ products with allegedly infringing marks—there is no such comparison for the XL

1
Where, as here, Defendants move to dismiss in-part under Rule 12, Defendants’ time to file an
answer is tolled. See Ello v. Brinton, No. 2:14-CV-299-TLS, 2015 WL 7016462, at *4 (N.D. Ind.
Nov. 10, 2015) (explaining that the time to answer Counts I and II was tolled given the Partial
Motion to Dismiss on Count III); Richter v. Corp. Fin. Assocs., LLC, No. 1:06CV1623-JDT-TAB,
2007 WL 1164649, at *2 (S.D. Ind. Apr. 19, 2007) (“The majority of decisions have concluded
that a partial motion to dismiss tolls the time within which a defendant must answer with respect
to the claims not challenged in the motion.”); see also Modrowski v. Pigatto, 712 F.3d 1166, 1170
(7th Cir. 2013) (serving a Rule 12 Motion to Dismiss tolls the deadline for filing an answer).
2
Mark Brown is a shareholder and the President of R. Brown. (Brown Decl. ¶¶ 2, 4.)

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Mark. (Compare Filing No. 1-1 and 1-2 (1.4g’s Ghost 36 shot and Tiki products) with Filing No.

1-3 and 1-4 (allegedly infringing Ghost-Nine and Tiki Bomb products).)3 Noticeably absent from

the Complaint are any allegations identifying the allegedly infringing XL products or how

Defendants are allegedly infringing the XL Mark beyond barebone assertions of unspecified “use.”

(E.g., Filing No. 1 at 9, ¶ 63.) Similarly, though 1.4(g) claims to own the XL Mark, it fails to

identify any products it sells which utilize the XL Mark. As pleaded, Defendants lack adequate

notice regarding 1.4(g)’s XL Mark claims. Dismissal is appropriate.4

FACTUAL BACKGROUND AND ALLEGATIONS

I. Background Relevant to Personal Jurisdiction

1.4(g) is a Nevada limited liability company with its principal state of business in Nevada.

(Filing No. 1 at 1, ¶ 1.) R. Brown is a Montana corporation with its principal place of business in

Montana. (Id. at 2, ¶ 4; see also Brown Decl. ¶ 6 (R. Brown was formed in Montana, its principal

office address is in Montana, and its registered agent’s address is in Montana); (Filing No. 8 at 1

(Affidavit of Service); Filing No. 8-3 at 1 (Proof of Service) (showing service of R. Brown in this

lawsuit at a McDonald’s Restaurant in Montana)). R. Brown’s officers (Mark Brown, President;

Cory Brown, Secretary; and Christian Brown, Treasurer), who are also the shareholders of R.

Brown, all live and work in Montana. (Brown Decl. ¶¶ 2–5.) R. Brown is not, and has never been,

registered to do business in Indiana, does not do business in Indiana, does not have offices in

Indiana, and does not have any employees who live or work in Indiana. (Id. ¶ 7–10.) Mark Brown

3
To be clear, Defendants dispute all allegations of infringement with respect to each of the marks
identified in the Complaint regardless of 1.4(g)’s allegations, but simply note this disparity in
pleading in order to emphasize the deficiencies concerning the XL Mark allegations.
4
1.4(g)’s failure to identify the allegedly infringing XL products is unsurprising given that
Defendants have used “XL” generically to indicate the size of certain fireworks products.

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has never traveled to Indiana for any business reason, and R. Brown has never sent anyone to travel

to Indiana for any business reason. (Id. ¶ 19.)

R. Brown is a wholesaler of fireworks and is a licensee of the Great Grizzly fireworks

brand. (Id. ¶ 11.) R. Brown develops its own products under the Great Grizzly name and sells them

to wholesale customers on the West Coast of the United States. (Id. ¶ 14.) R. Brown and Great

Grizzly do not share any offices, develop or sell products together, and have had limited

communications consisting only of a few phone calls (Id. ¶ 12–14.)

R. Brown’s website is located at http://www.greatgrizzly.net/ (the “R. Brown Website”)

and displays Great Grizzly’s logo, but Great Grizzly has no role in creating or maintaining that

website. (Id. ¶ 15.) The phone number listed on the R. Brown Website is 406-543-4847, which is

a Montana phone number belonging to R. Brown, and the “contact” address is 9400 Inspiration

Drive, Missoula, Montana 59808 (R. Brown’s principal office address). (Id.) The public can

browse products on the R. Brown Website but cannot purchase anything from the website. (Id. ¶

16.) There are not, and never have been, any Ghost Nine-Shots, Tiki Bombs, 5 or any fireworks

product with an “XL” on it listed on the R. Brown Website. (Id. ¶ 17.)

Beyond licensing the Great Grizzly brand, the only connection between R. Brown and

Great Grizzly is that Mark Brown (President of R. Brown) is also listed as the Treasurer of Great

Grizzly. (Id. ¶ 18.) Mr. Brown, however, has no common duties between these roles, and his role

as Treasurer of Great Grizzly is in name-only; he does not and have never done any work (or

received any compensation for work) as Treasurer of Great Grizzly. (Id.)

5
1.4(g) alleges that the Defendants’ use of the “Ghost Nine-Shot Mark” (used on the Ghost-Nine
Shot product) is likely to be confused with 1.4(g)’s “Ghost Design Mark” (Filing No. 1 at 5, ¶¶
29–30), and that Defendants’ use of the “Tiki Bomb Packaging” (used on the Tiki Bomb product)
is likely to be confused with 1.4(g)’s “Tiki Trade Dress” (id. at 5–6, ¶¶ 31–32).

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North Central Industries, Inc. (“NCI”) is also a wholesaler of fireworks who is a licensee

of the Great Grizzly brand. (Id. ¶ 20.) NCI develops its own products via its license with Great

Grizzly. (Id. ¶ 22.) R. Brown is not involved in NCI’s development of Great Grizzly products and

does not sell any Great Grizzly products developed by NCI. (Id.) R. Brown and NCI sell Great

Grizzly products in nonoverlapping parts of the United States based on a market sharing

agreement. (Id. ¶ 23.) NCI only sells Great Grizzly products in the central part of the United States,

and R. Brown only sells Great Grizzly products in the western part of the United States. (Id.) R.

Brown and NCI do not place orders together. (Id.) They do not share any offices, officers, or other

business connections. (Id. ¶ 21.)

In the last five years, R. Brown has only ever sold Great Grizzly products to NCI once in

2019. (Id. ¶ 24.) The only two products sold were colored sparklers and smoke balls, not Ghost

Nine-Shots, Tiki Bombs, or any fireworks product with an “XL” on it. (Brown Decl. ¶ 24.) That

sale and the market sharing agreement is the only business relationship that R. Brown has had with

NCI. (Id.)

R. Brown does not engage in any retail sales in Indiana or anywhere; it only sells products

wholesale and has never made any wholesale sales to Indiana. (Id. ¶ 27.) This includes the

allegedly infringing products: R. Brown has never sold or shipped any Ghost Nine-Shots, Tiki

Bombs, or any firework product with an “XL” on it to Indiana (or anywhere else). (Id. ¶ 25.) The

only product including the word “Tiki” that R. Brown has sold was the “Tiki Bar” 90 Shot Roman

Candle. (Id. ¶ 26.) That product never has been sold or shipped to Indiana and is no longer sold by

R. Brown. (Id.) R. Brown does not advertise in Indiana and does not keep any Great Grizzly

products in Indiana, including Ghost Nine-Shots, Tiki Bombs, or any fireworks product with an

“XL” on it. (Id. ¶¶ 28, 29.)

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II. Allegations Regarding the XL Mark

1.4(g) alleges ownership of the federally registered XL Mark for use with “fireworks,”

registered on February 28, 2018. (Filing No. 1 at 3, ¶ 18.) 1.4(g) further alleges: “Defendants are

using and have used the XL Mark (as used by Defendant, the ‘Infringing XL Mark’) in commerce

in connection with the sale, offering for sale, distribution, and advertising of goods without

Plaintiff’s consent (the ‘Infringing XL Mark Use’).” (Id. at 9, ¶ 63; see also id. at 5, ¶ 28

(“Defendants have used and are using the XL Mark in commerce for use with fireworks.”); id.at

10, ¶ 70 (“Defendants utilized the XL Mark without authorization in derogation of Plaintiff’s

exclusive rights under 15 U.S.C. § 1114.”).) There are no further allegations as to what the

“Infringing XL Mark” or the “Infringing XL Mark Use” means, nor are there any allegations

concerning what products 1.4(g) sells that utilize the XL Mark. 1.4(g) also alleges that “[t]he

Infringing XL Mark Use is likely to cause confusion, cause mistake, or deceive customers and the

public with respect to the goods offered in commerce by Defendants” (without alleging what those

goods are), that Defendants’ alleged infringement was willful, and that 1.4(g) has been damaged

as a result. (Id. ¶¶ 64–67.) Finally, 1.4(g) alleges that Defendants have profited because of the

Infringing XL Mark Use. (Id. ¶ 68.)

LEGAL STANDARD

I. Personal Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(2), claims should be dismissed where there

is no personal jurisdiction. E.g., Lovett v. Steak N’ Shake, No. 4:21-CV-00010-TWP-DML, 2022

WL 602833, at *2 (S.D. Ind. Mar. 1, 2022). If a defendant moves to dismiss under Rule 12(b)(2),

the plaintiff bears the burden of establishing personal jurisdiction. Id. The extent of that burden

depends on whether the Court holds an evidentiary hearing to determine personal jurisdiction (in

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which case plaintiff’s burden is the preponderance of the evidence), or whether the court

determines personal jurisdiction based on written submissions (in which case the plaintiff’s burden

is making a prima facie case). Id. In deciding a Rule 12(b)(2) Motion, the court accepts all factual

allegations in the Complaint as true and draws inferences in the plaintiff’s favor, but conclusory

allegations do not suffice. See id. Additionally, if the defendant submits evidence in opposition

(such as affidavits), “the plaintiff must go beyond the pleadings and submit affirmative evidence

supporting the exercise of jurisdiction.” Id. (quoting Purdue Research Found. v. Sanofi-

Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). “Vague generalizations or ‘conclusory

allegations unsupported by any factual assertions will not withstand a motion to dismiss.’” Search

Force, Inc. v. Dataforce Int’l, Inc., 112 F. Supp. 2d 771, 774 (S.D. Ind. 2000) (quoting Cushing v.

City of Chicago, 3 F.3d 1156, 1161 n. 5 (7th Cir. 1993)).

In cases involving both federal claims under the Lanham Act and state law claims, courts

“look to the law of the forum for the governing rule” on personal jurisdiction. Advanced Tactical

Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. 2014), as corrected

(May 12, 2014). The Indiana Supreme Court held that Indiana’s long-arm statute (Ind. Trial Rule

4.4(A)) “reduce[s] analysis of personal jurisdiction to the issue of whether the exercise of personal

jurisdiction is consistent with the Federal Due Process Clause.” Id. (quoting LinkAmerica Corp. v.

Cox, 857 N.E.2d 961, 967 (Ind. 2006)). Due process requires that a non-resident defendant have

“minimum contacts with the [forum state] such that the maintenance of the suit does not offend

traditional notions of fair play and substantial justice.” Annie Oakley Enterprises, Inc. v. Sunset

Tan Corp. & Consulting, LLC, 703 F. Supp. 2d 881, 886 (N.D. Ind. 2010) (quoting Int’l Shoe Co.

v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945)). The

touchstone is whether the defendant’s contacts with the forum state “are such that defendant

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‘should reasonably anticipate being haled into court [in the forum state].” Id. (quoting Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)).

There are two types of personal jurisdiction under the Federal Due Process Clause: general

and specific. E.g., Advanced Tactical, 751 F.3d at 800; Annie Oakley, 703 F. Supp. at 886. General

jurisdiction exists only when the defendant is “at home” in the forum, which, for a corporation,

includes the state of incorporation and the state of its principal place of business. Advanced

Tactical, 751 F.3d at 800. A federal district court in Indiana may only exercise general jurisdiction

over a nonresident defendant that has “continuous and systematic general business contacts” with

Indiana, meaning that those contacts are “so extensive to be tantamount to [the nonresident

defendant] being constructively present in [Indiana] to such a degree that it would be

fundamentally fair to require it to answer in [an Indiana court] in any litigation arising out of any

transaction or occurrence taking place anywhere in the world.” Annie Oakley, 703 F. Supp. 2d at

887 (quoting Purdue Research, 338 F.3d at 787). The standard of establishing general jurisdiction

is “high.” Id.

In contrast, specific jurisdiction exists only when the lawsuit “arises out of the forum-

related activity.” Advanced Tactical, 751 F.3d at 800. The relevant contacts focus on the

relationship between the defendant, the forum, and the litigation—i.e., defendant’s “suit related

conduct must create a substantial connection with the forum State.” Id. (internal quotations

omitted) (emphasis in original). The relationship between the defendant and the forum “must arise

out of the contacts that the defendant himself creates with the forum,” and “[c]ontacts between the

plaintiff or other third parties and the forum do not satisfy this requirement.” Id. (internal

quotations omitted); see also Annie Oakley, 703 F. Supp. 2d at 890 (explaining that the focus is on

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defendant’s activities in the forum state and that the controversy must be related to or arise out of

those activities).

II. Failure to State a Claim

Claims are appropriately dismissed under Federal Rule of Civil Procedure 12(b)(6) if they

do not include facts stating a plausible claim for relief. E.g., Fortres Grand Corp. v. Warner Bros.

Ent. Inc., 763 F.3d 696, 700 (7th Cir. 2014). “Allegations of consumer confusion in a trademark

suit, just like any other allegations in any other suit, cannot save a claim if they are implausible.”

Id. Additionally, allegations of trademark infringement must give the defendant fair notice of what

the plaintiff’s claim is and how the defendant allegedly used the mark in commerce. See Dow

Jones & Co., Inc. v. Int'l Sec. Exch., Inc., 451 F.3d 295, 307–08 (2d Cir. 2006); D.B.C. Corp. v.

Nucita Venezolana, C.A., 464 F. Supp. 3d 1323, 1329 (S.D. Fla. 2020).

ARGUMENT

I. This Court Lacks Personal Jurisdiction Over R. Brown.

The Court should dismiss R. Brown from this lawsuit because there is neither general nor

specific jurisdiction, and exercising jurisdiction over R. Brown would be fundamentally unfair and

unjust.

A. There Is No General Jurisdiction Because R. Brown, a Montana Corporation,

Is Not “At Home” in Indiana.

Courts consider several factors in determining whether there is general jurisdiction over a

defendant, including:

(1) whether and to what extent the defendant conducts business in the forum state;

(2) whether the defendant maintains an office or employees within the forum state;

(3) whether the defendant sends agents into the forum state to conduct business;

(4) whether the defendant advertises or solicits business in the forum state; and

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(5) whether the defendant has designated an agent for service of process in the forum state.

Annie Oakley Enterprises, Inc. v. Sunset Tan Corp. & Consulting, LLC, 703 F. Supp. 2d at 887.

None of these factors support general jurisdiction. First, R. Brown does not conduct

business in Indiana. It is not, and never has been, registered to do business in Indiana. (Brown

Decl. ¶ 7.) R. Brown is in the business of wholesaling fireworks, and R. Brown has never made

any wholesale (or retail) sales to Indiana. (Id. ¶¶ 11, 27.) That includes the allegedly infringing

Ghost Nine-Shots, Tiki Bombs, or any firework product with an “XL” on it (which R. Brown never

has sold or shipped anywhere). (Id. ¶ 25.) Instead, R. Brown wholesales Great Grizzly fireworks

(again, not those at issue) in the western part of the United States. (Id. ¶¶ 14, 23.) Second, R. Brown

does not maintain any offices in Indiana and has no employees who live or work in Indiana. (Id.

¶¶ 8, 10.) Third, R. Brown has never sent anyone (including its President) to Indiana for business

purposes. (Id. ¶ 19.) Fourth, R. Brown does not send any solicitations or mailings to Indiana and

does not advertise in Indiana. (Id. ¶ 28.) Fifth, R. Brown does not have a registered agent for

service in process in Indiana, as it is not registered to do business in Indiana at all (and was served

in this case in its home state of Montana). (Id. ¶ 7; Filing No. 8 at 1 (Affidavit of Service); Filing

No. 8-3 at 1 (Proof of Service).) R. Brown is fundamentally a Montana corporation doing business

in a different region of the country. (See Brown Decl. ¶ 2–5 (R. Brown’s shareholders and officers

work and live in Montana); id. ¶ 6 (R. Brown was formed and has its principal office in Montana);

id. ¶ 14, 23 (R. Brown’s presence in the western United States).) Simply, R. Brown is not “at

home” in Indiana. See Advanced Tactical, 751 F.3d at 800.

As evident in the Complaint, 1.4(g) attempts to concoct general personal jurisdiction by

relying on R. Brown’s business relationships with NCI and Great Grizzly (both Indiana

corporations). (Filing No. 1 at 2, ¶ 8 (alleging that R. Brown “has continuous and systematic

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contacts with the State of Indiana through R. Brown’s business relationships with NCI and Great

Grizzly”).) Yet neither of these relationships come close to establishing the “high” bar of contacts

“so extensive to be tantamount to [R. Brown] being constructively present in [Indiana]” so that R.

Brown could be held to answer to any litigation in Indiana. See Annie Oakley, 703 F. Supp. 2d at

887.

As to Great Grizzly, R. Brown and Great Grizzly neither develop nor sell products together.

(Brown Decl. ¶ 14.) They do not share any offices and have had very limited interactions consisting

of a few phone calls. (Id. ¶¶ 12, 13.) The sole business relationship between R. Brown and Great

Grizzly is that R. Brown is a licensee of Great Grizzly products. (Id. ¶ 14.) But as this Court has

aptly recognized, “[m]erely to do business with an Indiana corporation is insufficient to confer

general personal jurisdiction.” See Annie Oakley, 703 F. Supp. 2d at 8890 (explaining that the

proper inquiry is centered on the five factors addressed above); Purdue Rsch. Found. v. Sanofi-

Synthelabo, S.A., 338 F.3d 773, 788 (7th Cir. 2003) (holding that a “collaborative effort” between

nonresident and resident entities based on “several confidentiality agreements” and a “few visits

to Indiana” was “simply insufficient to satisfy the demanding standard set forth by the Supreme

Court of the United States in Helicopteros”) (citing Helicopteros Nacionales de Colombia, S.A. v.

Hall, 466 U.S. 408, 416 (1984)). Even the licensor/licensee relationship between R. Brown and

Great lacks any Indiana focus, as R. Brown sells Great Grizzly brand products not in Indiana, but

in the western United States. (Brown Decl. ¶¶ 14, 23, 25.)

1.4(g)’s reliance on the R. Brown Website does not fix the jurisdictional issues plaguing

the Complaint. (See Filing No. 1 at 3, ¶ 12.) Despite the website’s domain name and display of the

Great Grizzly logo, Great Grizzly has no role in creating or maintaining that website. (Brown Decl.

¶ 15.) And though the contact button is labeled “Contact Great Grizzly” (see Filing No. 1 at 3, ¶

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14), the contact information is for R. Brown—listing R. Brown’s principal office address in

Montana and its Montana phone number. (Brown Decl. ¶ 15.) The reality is that R. Brown and

Great Grizzly are separate business entities. (Id. ¶ 18.) Mark Brown’s simultaneous roles as

President of R. Brown and Treasurer of Great Grizzly does not change that, as the roles share no

overlapping duties, and Mr. Brown does not and has not done work as Treasurer of Great Grizzly.

(Id.) Mr. Brown has never even traveled to Indiana for business purposes. (Id. ¶ 19.)

R. Brown’s relationship to NCI is even more attenuated. R. Brown and NCI do not share

any offices, officers, or other business connections. (Id. ¶ 21.) NCI independently develops its own

products via its own license with Great Grizzly. (Id. ¶ 22.) R. Brown does not sell any Great Grizzly

products developed by NCI, and they do not place orders together. (Id. ¶¶ 22, 23.) R. Brown’s and

NCI’s business relationship is limited to a market sharing agreement in which R. Brown agreed

not to sell Great Grizzly products in NCI’s central United States territory and to confine itself to

its separate, western territory. (Id. ¶ 23.) In other words, R. Brown’s and NCI’s relationship

effectively keeps R. Brown out of Indiana. The one-time sale of Great Grizzly products from R.

Brown to NCI (colored sparklers and smoke balls) in 2019 (see ¶ 24) in no way establishes such a

substantial relationship with NCI as to make R. Brown “at home” in Indiana. See Annie Oakley,

703 F. Supp. 2d at 887 (“It is well established that merely some activity in Indiana is insufficient

to establish jurisdiction”). This Court lacks general personal jurisdiction over R. Brown.

B. There Is No Specific Jurisdiction Because R. Brown Lacks Minimum Contacts

with Indiana that Gave Rise to this Lawsuit.

R. Brown does not have any contacts with Indiana sufficiently related to the underlying

trademark infringement controversy justifying specific jurisdiction. The fundamental controversy

in this lawsuit is over alleged trademark infringement, yet R. Brown has never sold or shipped any

of the allegedly infringing products—Ghost Nine-Shots, Tiki Bombs, or any firework product with

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an “XL” on it—to Indiana (or anywhere else). (Brown Decl. ¶ 25.)6 Tellingly, 1.4(g) does not even

allege that R. Brown in any way used the allegedly infringing marks in Indiana at all, instead

generically alleging that the marks were used “in commerce” without reference to any specific

location. (E.g., Filing No. 1 at 5, ¶¶ 26–28.); see also Nerds on Call, Inc. (Indiana) v. Nerds on

Call, Inc. (CALIFORNIA), 598 F. Supp. 2d 913, 918 (S.D. Ind. 2008) (explaining that the injury

in trademark infringement actions occurs where the infringing activity or the unlawful use of the

mark occurs, and noting the lack of allegations that defendant used the mark in Indiana).) Even if

1.4(g) had alleged that R. Brown used the allegedly infringing marks in Indiana, however, that

would still not be enough to establish specific jurisdiction without more. See Annie Oakley, 703 F.

Supp. 2d at 891 (“Jurisdiction may be proper when the injury to the trademark occurred in Indiana,

but only if the existence of other purposeful contacts with the forum are established.”).

And here, there is no more. R. Brown has never “targeted” the Indiana market in any way,

including through its website—on which the public can browse, but cannot purchase products.

(Brown Decl. ¶ 16); see Annie Oakley, 703 F. Supp. 2d at 893 (finding no specific jurisdiction and

noting that there was “simply no evidence of Indiana residents being targeted by the website at

issue”). Beyond that, the allegedly infringing products are not and never have been listed on the

website. (Brown Decl. ¶ 17); see Advanced Tactical, 751 F.3d at 803 (explaining that “[t]he

interactivity of a website is . . . a poor proxy for adequate in-state contacts” because it does not

show that defendant formed contact with the forum state, but regardless, “it is unclear how any

interactivity of the website here affected the alleged trademark infringement”).

6
The only product including the word “Tiki” that R. Brown has sold was the “Tiki Bar” 90 Shot
Roman Candle, but that product (1) has been has never been sold or shipped to Indiana, (2) is no
longer sold by R. Brown, and (3) is not alleged to be infringing. (Id. ¶ 26; see also Filing No. 1 at
6, ¶ 32 (complaining of the Tiki Bombs Packaging on the Tiki Bombs product).)

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Finally, any reliance by 1.4(g) on R. Brown’s contacts with Great Grizzly and/or NCI to

establish specific jurisdiction is misguided and insufficient. As the Seventh Circuit has explained,

the relationship between the defendant and the forum “must arise out of the contacts that the

defendant himself creates with the forum,” and “[c]ontacts between the plaintiff or other third

parties and the forum do not satisfy this requirement.” Advanced Tactical, 751 F.3d at 800 (internal

quotations omitted); see also Annie Oakley, 703 F. Supp. 2d at 984 (holding that minimum contacts

with Indiana were not established based on a manufacturing and distribution agreement with

nonparty). Moreover, as to Great Grizzly, R. Brown only wholesales Great Grizzly brand products

on the West Coast of the United States (Brown Decl. ¶ 14), and R. Brown agreed with NCI that it

would only sell Great Grizzly products in the western United States (id. ¶ 23.) R. Brown’s one-

time sale of colored sparklers and smoke balls to NCI is irrelevant to the specific jurisdiction

analysis because those sales were not for the allegedly infringing products. (Id. ¶ 24); see also

Annie Oakley, 703 F. Supp. 2d at 984 (finding no specific jurisdiction where the only three sales

made to Indiana residents were of an “insignificant quantity” and “were not even the allegedly

infringing products”). Because R. Brown has no relevant contacts with Indiana making it

reasonably foreseeable that it would be haled into court here, there is no specific jurisdiction.

C. Exercising Personal Jurisdiction Over R. Brown Would Be Unfair and Unjust.

Even if purposeful, minimum contacts between R. Brown and Indiana could be established

(they are nonexistent), exercising jurisdiction over R. Brown would “offend[ ] traditional notions

of fair play and justice.” See NBA Properties, Inc. v. HANWJH, 46 F.4th 614, 627 (7th Cir. 2022),

cert. denied, 143 S. Ct. 577 (2023). For this inquiry, courts may consider:

The burden on the defendant, the forum State’s interest in adjudicating the dispute,
the plaintiff’s interest in obtaining convenient and effective relief, the interstate
judicial system’s interest in obtaining the most efficient resolution of the underlying

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dispute, and the shared interest of the several States in furthering fundamental
substantive social policies.

Id. (quoting Illinois v. Hemi Group LLC, 622 F.3d 754, 759 (7th Cir. 2010). Application of these

factors demonstrates that exercising jurisdiction over R. Brown would be inappropriate. Most

importantly, the burden on R. Brown of litigating in Indiana would be high, as R. Brown is a

Montana corporation with all shareholders and officers living and working in Montana. (Brown

Decl. ¶¶ 2–6.) Indiana, moreover, has little interest in adjudicating the dispute over R. Brown.

1.4(g) is not an Indiana corporation (Filing No. 1 at 1, ¶ 1), and R. Brown has not targeted Indiana

consumers in any way—no less concerning the allegedly infringing products at-issue—

demonstrating Indiana’s lack of policy interests concerning R. Brown’s alleged infringement.

(Brown Decl. ¶¶ 7–10, 16–17, 23, 25–29.) Finally, while it may be more convenient for 1.4(g) to

litigate against all Defendants in the same venue, that convenience should not override R. Brown’s

interest in not being haled into a forum where it is neither “at home” nor purposefully availed

itself.

II. 1.4(g) Fails to State a Claim as to the XL Mark.

Even if the court exercises personal jurisdiction over R. Brown, 1.4(g)’s claims pertaining

to the XL Mark against all Defendants (R. Brown, Great Grizzly, and NCI) should be dismissed

for failure to meet basic plausibility pleading standards.

The Complaint contains little more than threadbare recitals as to the XL Mark. Though

1.4(g) has no trouble identifying the specific, allegedly infringing products as to the Tiki Mark and

the Ghost Mark, the same cannot be said of the XL Mark. Not once in the Complaint does 1.4(g)

allege which fireworks product(s) used by Defendants allegedly infringe the XL Mark, no less

where or when Defendants allegedly used them. (See Filing No. 1 at 5, ¶ 28; id. at 9–10, ¶¶ 62–

71); compare D.B.C. Corp. v. Nucita Venezolana, C.A., 464 F. Supp. 3d 1323, 1329 (S.D. Fla.

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2020) (dismissing trademark infringement claims as conclusory where plaintiff alleged what the

confusingly similar marks were, but “no other information as to how, exactly, the Defendants have

used the infringing marks in commerce”) and Pub. Free Will Corp. v. Verizon Commc’ns Inc., No.

15-CV-6354-RRM-JO, 2017 WL 1047330, at *4 (E.D.N.Y. Mar. 17, 2017) (dismissing trademark

infringement claims where there were no pleaded “facts, details, or descriptions concerning

Verizon’s alleged advertisement” or “a copy of a Verizon advertisement that uses the term ‘Free

Will’ [the service mark]”), with Papa John's Int’l, Inc. v. Rezko, 446 F. Supp. 2d 801, 807–08

(N.D. Ill. 2006) (concluding that plaintiffs stated a trademark infringement claim where the

Complaint noted the time frame, indicated the similar mark (“Papa Tony’s”), and the location of

infringement). Nor does 1.4(g) even bother to identify the products it sells which utilize the XL

Mark.

Without pleading such basic facts, Defendants lack fair notice of 1.4(g)’s claims regarding

the XL Mark. See Dow Jones & Co., Inc. v. Int’l Sec. Exch., Inc., 451 F.3d 295, 307–08 (2d Cir.

2006) (“The mere assertion that [defendants’] intended use of the [plaintiff’s] marks would

constitute trademark infringement and dilution, without any factual allegations concerning the

nature of the threatened use, does not give the defendants fair notice of the claims against them[.]”).

Further, without knowing what products that 1.4(g) claims are allegedly infringing or any details

about the allegedly infringing products, 1.4(g) has not established a plausible allegation of likely

confusion—a key element of trademark infringement claims. To illustrate, the “degree of

similarity between the marks in appearance and suggestion” and “the similarity of the products for

which the name is used” cannot be evaluated without identification of the allegedly infringing

products or the products sold by 1.4(g). See Fortres Grand Corp. v. Warner Bros. Ent. Inc., 763

F.3d 696, 700 (7th Cir. 2014) (explaining that when evaluating plausibility, the 7th Circuit uses

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seven-factor test for likelihood of confusion).7 1.4(g)’s claims regarding the XL Mark as pleaded

are implausible and should be dismissed.

CONCLUSION

For the foregoing reasons, the Court should dismiss R. Brown for lack of personal

jurisdiction and dismiss 1.4(g)’s claims against all Defendants regarding the XL Mark.

Respectfully submitted,

/s/ Meaghan K. Haller

Meaghan K. Haller, #29323-53
Alex E. Gude, #28586-53
Jessica L. Meek, #34677-53
DENTONS BINGHAM GREENEBAUM LLP
2700 Market Tower, 10 West Market Street
Indianapolis, IN 46204-4900
(317) 635-8900
(317) 236-9907 Fax
meaghan.haller@dentons.com
alex.gude@dentons.com
Jessica.meek@dentons.com

Attorneys for Defendants, North Central

Industries, Inc., Great Grizzly, Inc. and R.
Brown, Inc.

7
The other factors are “the area and manner of concurrent use;” “the degree of care likely to be
exercised by consumers”; “the strength [or ‘distinctiveness’] of the complainant’s mark”; “actual
confusion;” and “an intent on the part of the alleged infringer to palm off his products as those of
another.” Fortres, 763 F.3d at 700.

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CERTIFICATE OF SERVICE

I hereby certify that on February 28, 2023, the foregoing was filed with the Clerk of
Court using the CM/ECF system, which will provide notice to the following via the Court’s
Electronic Filing System and that notice of this filing will be provided to all counsel of record
via the Court’s Electronic Filing System to:

Philip R. Zimmerly, Esq. Steven A. Gibson, Esq.

pzimmerly@boselaw.com sgibson@gibsonlexbury.com

Jodi Donetta Lowry, Esq.

jlowry@gibsonlexbury.com

/s/ Meaghan K. Haller

Meaghan K. Haller, #29323-53

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