Lyons v. Gillette

882 F.Supp.2d 217

Sheila LYONS, and Homecoming Farm, Inc., Plaintiffs,

v.Robert GILLETTE, Linda Blythe, Hilary Clayton, James Cook, Christine Zink, Joseph Wakshlag Andris Kaneps, Wayne McIlwraith Kevin Haussler, the Board of Directors of the American College of Veterinary Sports Medicine and Rehabilitation, Inc., and American Veterinary Medical Association, Inc., Defendants.

Civil Action No. 11–12192–WGY.

United States District Court, D. Massachusetts.

July 31, 2012.

Stephen J. Lyons, Klieman & Lyons, Boston, MA, for Plaintiffs.

John Mark Dickison, Lawson & Weitzen, LLP, David A. Kluft, Foley Hoag LLP, Joshua M.D. Segal, Lawson & Weitzen, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

The plaintiffs Sheila Lyons (“Lyons”) and Homecoming Farm, Inc. (“Homecoming Farm”) claim infringement of their trademark and copyrighted work. Lyons and Homecoming Farm also have brought additional claims, including Chapter 93A violations, misappropriation of “intellectual property,” loss of business opportunity, and tortious interference.

Lyons and the defendant Robert Gillette (“Gillette”) served as members of an organization committee of veterinarians (the “Committee”) who sought to incorporate The American College of Veterinary Sports Medicine and Rehabilitation (the “College”). The purpose of the College was to teach a new veterinary specialty recognized by The American Veterinary Medical Association, Inc. (the “Association”), an organization based in Illinois that certifies veterinary specialties. The relationship between Lyons and the Committee went sour in 2004. Lyons was asked to recuse herself from the Committee, after allegations of Lyons improperly collecting moneys and failing to present her credentials. Lyons maintains that these accusations are defamatory.

In reaction to these events, on May 24, 2005, Lyons filed a trademark application as owner of the marks “American College of Veterinary Sports Medicine and Rehabilitation” and “ACVSMR.” The complaintalleges that in the accreditation process before the Association, the College used the material authored by Lyons without her permission, thus infringing her copyrights.

A. Procedural Posture

Lyons and Homecoming Farm filed a fourteen count complaint on December 12, 2011. Civil Compl. Damages Equitable Relief Demand Trial Jury (“Compl.”), ECF No. 1. The Association filed a motion to dismiss all counts of the complaint on February 9, 2012, Def. Am. Veterinary Med. Ass'n's Mot. Dismiss, ECF No. 8, supported by a memorandum, Mem. Reasons Supp. Am. Veterinary Med. Ass'n's Mot. Dismiss (“Association's Mem.”), ECF No. 9. On February 10, 2012, the College and its individual directors filed a partial motion to dismiss along with corresponding memorandum. Specifically, they allege this is a trademark claim and they seek dismissal of Counts VI, VII, IX, X, XI, XII, XIII, and XIV as to all defendants and dismissal of all claims as to the individual directors. Partial Mot. Dismiss Am. Coll. Veterinary Sports Med. Rehab. Individual Dirs. (“College's Mot.”), ECF No. 10; Mem. Supp. Partial Mot. Dismiss Am. Coll. Veterinary Sports Med. Rehab. Individual Dirs. (“College's Mem.”), ECF No. 11.

Lyons and Homecoming Farm opposed both motions. On February 23, 2012, Lyons and Homecoming Farm opposed the Association's Motion. Mem Opp'n Def. Am. Veterinary Med. Ass'n's Mot. Dismiss (“Lyons' Opp'n to Association”), ECF No. 12. On February 24, 2012, Lyons and Homecoming Farm opposed to the College's Motion. Mem. Opp'n Partial Mot. Dismiss Def. Am. Coll. Veterinary Sports Med. Rehab. & Individual Defs. (“Lyons' Opp'n to College”), ECF No. 13. The replies from both the College and the Association followed on March 1 and 2, 2012. Reply Br. Supp. Am. Veterinary Med. Ass'n's Mot. Dismiss (“Association's Reply”), ECF No. 15; Reply Mem. Supp. Partial Mot. Dismiss Am. Coll. Veterinary Sports Med. Rehab. & Individual Dirs. (“College's Reply”), ECF No. 16.

On March 19, 2012, Lyons and Homecoming Farm filed a motion to amend the complaint. Mot. Amend Compl. Assert Add'l Claims Relief Breach Contract Abuse Process Based Facts Already Pled Compl., ECF No. 17. The Court denied the motion to amend as futile on March 26, 2012. Elec. Order, Mar. 26, 2012. During a motion hearing held on April 10, 2012, this Court ruled from the bench dismissing Counts XI, XIII, and all Counts against the individual Directors. Clerk's Notes, Apr. 10, 2012.

B. Factual Allegations

Lyons is a veterinarian and founder of Homecoming Farms, Inc., a New Hampshire corporation with its principal place of business in Brockton, Massachusetts. Compl. ¶¶ 2–3, 18. Lyons sought the creation of a new post-doctoral institution for veterinarians under the name of “The American College of Veterinary Sports Medicine and Rehabilitation.” Id. ¶¶ 42–46, 63–66. The College would create a new veterinary specialty pertaining to the treatment of horses and dogs involved in racing and other sports. Id. ¶ 26. To teach this specialty, the College first needed to obtain recognition by the Association, a not-for-profit association of veterinarians incorporated in Illinois. Id. ¶¶ 5, 48. Lyons first contacted the Association in 1997 to discuss the process of approval. Id. ¶ 42. Lyons alleges that she authored and copyrighted a detailed plan and educational materials for the post-doctoral specialty in order to meet the Association's eligibility requirements. Id. ¶ 46. As requiredby the Association, Lyons invited five veterinarians to be part of a Committee in order to submit the application for the College's approval. Id. ¶¶ 48–49.

In 1999, Lyons and Gillette had first discussed the specialty while at a conference in Oregon. Id. ¶¶ 63–64, 66–67. Lyons alleges that she described the copyrighted materials and informed Gillette that his participation on the Committee was conditioned upon his acceptance of her plan for the specialty. Id. ¶¶ 68–69. On September 9, 1999, Lyons provided Gillette with her copyrighted work. Id. ¶ 74. On July 2001, Lyons registered the domain names ACVSMR.org and ACVSMR.com, which are the property of Homecoming Farm. Id. ¶¶ 38, 126.

In 2000, Lyons invited Gillette to be part of the Committee. Id. ¶ 76. Then, on January 19, 2003, the Committee wrote a formal request to the Association for the approval of the specialty. Id. ¶ 81. The request to the Association was based on Lyons' copyrighted materials. Id. ¶ 82. On May 18, 2004, the Committee met in Chicago, where Lyons provided the College's proposed articles of incorporation, by-laws, and copies of other copyrighted materials. Id. ¶¶ 83–84, 91.

On July 26, 2004, the members of the Committee, including Lyons and Gillette, attended an Association meeting in Philadelphia, where the formation of the College and the specialty was to be discussed. Id. ¶ 92. Prior to the meeting, Gillette had been informed of complaints against Lyons, apparently by former clients of hers. Id. ¶¶ 93–98. Gillette confronted Lyons about two things: first, her lack of credentials, allegedly Lyons held herself out as having a Ph.D. when in fact she did not have one; and second, “allegations involving improper conduct” made by former clients of Lyons. Id. Gillette refused to reveal the nature of the second allegation, including the names of the former clients. Id. ¶ 96. Lyons was asked to recuse herself from the Committee. Id. ¶ 100. Lyons protested that the accusations were defamatory, that she had founded the Committee and could not be recused without first being heard, and finally that the Committee was in possession of her intellectual property. Id. ¶¶ 100–02. Lyons alleges that as of the meeting on July 26, 2004, the Committee was not authorized to use the “ACVSMR” mark or her work product without her express permission. Id. ¶ 102.

A representative of the Association, Jon Frederick Dee (“Dee”), was present during the July 26, 2004 meeting when Lyons warned the Committee about the unauthorized use of her work. Id. ¶ 104. Prior to the July 26, 2004 meeting, Dee had copies and was aware of the content of the copyrighted work authored by Lyons. Id. ¶¶ 88–91. The Committee, however, continued using Lyons' trademark and work product to apply for the approval of the specialty without her authorization. Id. ¶ 128. On September 1, 2004, and on November 25, 2005, Gillette sent two letters to the Association explaining the relationship between the College and Lyons, and the reasons for her recusal. Id. ¶¶ 129–30. Lyons alleges that it was only on November 30, 2011 that she learned about Gillette's letters.¹Id. ¶ 129. The letters state that Lyons was receiving donations in the name of the College, for which she did not account to the Committee. Id. ¶ 130.

On May 24, 2005, Lyons filed a trademark application for the marks “The American College of Veterinary Sports Medicine and Rehabilitation” and “ACVSMR,” which were registered on May 2, 2006. Id. ¶ 16. Lyons alleges that she registered the copyrights over her research, education materials, and work associated with the ACVSMR mark. Id. ¶ 19.

In 2009, the Committee created a website and a Facebook page using the ACVSMR mark and Lyons' work product without her authorization or knowledge. Id. ¶¶ 121–23. In May 2010, the Association provisionally approved the new specialty under the name “The American College of Veterinary Sports Medicine and Rehabilitation” relying on Lyons' work product and announced it on the Association's website. Id. ¶ 131. The College was incorporated as a Colorado non-profit organization on June 2, 2011, with a principal place of business in Auburn, Alabama. Id. ¶ 5.

C. Federal Jurisdiction

This Court's subject matter jurisdiction arises under the trademark laws of the United States, 15 U.S.C. §§ 1051 et seq. (the “Lanham Act”), jurisdiction being conferred by 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338. Supplemental jurisdiction arises under 28 U.S.C. § 1367(a) as to the state law claims.

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