Molnarova v. Swamp Witches Inc.

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JANA MOLNAROVA, Plaintiff, v. SWAMP WITCHES INC. LLC, SWAMP WITCHES INC., and MICHAEL MOORE Defendants.

No. 2:23-cv-2157

United States District Court, S.D. Ohio, Eastern Division

September 16, 2024

Elizabeth P. Deavers, Magistrate Judge

OPINION AND ORDER

ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE

This matter comes before this Court on Defendants Swamp Witches Inc. LLC (“SWI LLC”), Swamp Witches Inc. (“SWI”), and Michael Moore's (collectively “Defendants”) Motion to Dismiss (“Motion”). (ECF No. 14). For the reasons set forth below, the Court DENIES IN PART and GRANTS IN PART the Motion: The Motion is DENIED as to Defendants SW and SWI and GRANTED as to Counts I through VII of Plaintiff's Complaint. The Court sua sponte GRANTS Plaintiff leave to amend.

I. BACKGROUND

A. Factual Background^[1]

Plaintiff Jane Molnarova (“Plaintiff”) is a citizen and resident of Slovakia and the creator of “Tumblerone,” a product that “permits a user to decorate . . . a tumbler or cup without physically touching the tumbler or cup.” (Id. ¶ 25). A spinner device of sorts, the Tumblerone consists of three detachable components: (1) a tilted base; (2) a spinning platform; and (3) a holder that has four curved fins to secure the inside of the tumbler or cup. (Id. ¶¶ 26, 32). Using a 3D printer, Ms. Molnarova manufactures the product and then ships it directly to customers. (Id. ¶¶ 28-29). Since at least July 2022, she has operated a digital store on Etsy, “CrystalyneShop,” through which she markets and sells Tumblerone. (Id. ¶ 24).

In or around April 2023, Plaintiff became aware that Defendants were marketing and selling “a virtually identical replication of the Tumblerone,” dubbed the “Manual Tumbler Turner,” on various social media accounts including TikTok and Instagram, as well as on Defendants' website (https://swampwitchesinc.com). (Id. ¶¶ 36-37). She further learned that Defendants had been, from as early as March 2023, marketing the Manual Tumbler Turner while explicitly acknowledging that there was “someone else out there selling it” in reference to Plaintiff and noting that she was “the only one that had it.” (Id. ¶ 40). Defendants' social media posts spurned the asking price for the Tumblerone, stating that Plaintiff “wanted so much for it, it was insane.” (Id. ¶ 41).

Several social media users picked up on the similarities between the parties' products. They left comments on Defendants' posts to that effect, expressing their “aware[ness] that the Tumblerone originated with Plaintiff.” (Id. ¶ 50). In response to some of those comments, Defendants acknowledged that their product was “inspired by” and “designed with the inspiration of” a product already on the market but insisted that it was an “affordable” alternative. (See Id. ¶¶ 46, 48).

Desperate to protect her product, Plaintiff took action: she sent a cease-and-desist letter directly to Defendants and separately sent a note requesting that an online sales platform on which Defendants were selling their products, Shopify, take down their posts. (See Id. ¶¶ 44, 49). As a result, Defendants posted two videos on TikTok April 6, 2023, the first of which stated that “if you misrepresent yourself as legal, that's a crime, buddy. Bye. Get a better legal team, Jana, Jana, Jan.” (See id. ¶ 53). In the second video that day, Defendants accused Plaintiff of “misrepresenting [her] copyright,” stating that “that's a problem,” while also “sarcastically acting as if he had accidentally left the Knockoff Tumblerone in view of the camera.” (See id. ¶ 55). The next day, Defendants posted another video, exclaiming that their product “seems to have gotten a little bit of attention” and imploring their followers to “get petty,” stating “we bitchy” while “sarcastically” mocking Plaintiff's attempts to halt Defendants' promotion and sale of their product. (See id. ¶ 56). Defendants had also apparently “solicited a name for [their product] to encourage intimidating and misogynistic abuse” against Plaintiff by Defendants' social media followers. (See id. ¶ 56). One commenter heeded that invitation and “mockingly suggested ‘Jana Banana Fanna Fonana Fee-fi fo Jana' as a name for the product, while another “mockingly suggested ‘Witch, Bitch not Jana' and ‘Bedazzled Bitch Witch'” as other potential names. (See id. ¶¶ 58, 59).

On May 2, 2023, an attorney “on behalf of Swamp Witches, Inc. (pending incorporation)” sent Plaintiff a cease-and-desist letter via email. (See id. ¶ 66). The letter stated, in relevant part:

We believe you are violating 17 U.S.C. § 512(f) by falsely claiming ownership of copyright rights that you do not own. You are engaging in deceptive trade practices by filing a false DMCA claim with Shopify® and asserting rights you do not own. This has been causing consumers to believe that the shop they are purchasing goods from is infringing upon someone's copyright rights because the listings of the goods they have purchased get removed. Further, the removal of the listings of already purchased goods results in consumers not being able to view the goods they already paid for. You are fraudulently misrepresenting to the public that you own the intellectual property rights to the design of “TUMBLERONE © 2022 IP” (hereafter, “TUMBLERONE”).

(See ECF No. 1-11). A series of takedown notices, and counter-notices, with Shopify ensued. (See ECF No. 1 ¶¶ 71-78). During and since that time, Plaintiff had been unable to verify that Defendants SWI LLC and SWI existed as legal corporate entities in Ohio. (See Id. ¶¶ 80-82).

B. Procedural History

On July 6, 2023, Plaintiff initiated this action. (ECF No. 1). On October 17, 2023, Defendants filed their Motion to Dismiss. (ECF No. 14). Plaintiff has opposed, (ECF No. 17), and Defendants have replied, (ECF No. 19). The Motion is now ripe for resolution.

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) operates to test the sufficiency of the complaint and permits dismissal for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive dismissal under Rule 12(b)(6), factual allegations contained in the complaint “must be enough to raise a right to relief above the speculative level”; a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

In reviewing a motion to dismiss, this Court accepts as true a plaintiff's well-pleaded factual allegations and construes all factual inferences in the light most favorable to the nonmoving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). This Court, however, is not required to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although this Court's review is generally limited to the contents of the complaint, it may also consider “any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).

III. LAW & ANALYSIS

The Motion argues that Defendants SWI LLC and SWI should be dismissed because those entities do not legally exist. (Id. at 9). They also assert that the various counts asserted against them-(1) federal copyright infringement, (2) federal trade dress infringement, (3) federal unfair competition, (4) deceptive trade practices under Ohio law, (5) defamation under Ohio law, (6) tortious interference with a business relationship under Ohio law, and (7) telecommunications harassment under Ohio law-fail to state a claim as a matter of law. Plaintiff argues that the Complaint is adequately pleaded as filed, but in the alternative, requests leave to amend her Complaint. (See ECF No. 17, at 17-18). This Court first addresses Defendants' improper party argument before turning to the sufficiency of Plaintiffs' claims.

A. Dismissal of Defendants SWI LLC and SWI

This Court begins with Defendants' argument that SWI LLC and SWI should be dismissed. According to Defendants, SWI LLC is not a viable party to this litigation because the corporation was cancelled by the Ohio Secretary of State approximately two weeks after this action was filed. (See ECF No. 14, at 9). They argue that SW, on the other hand, is not a proper party because it never existed as a corporate entity. (Id.). Plaintiff concedes that “such business entities do not exist,” (ECF No. 17 at 17) but argues against their dismissal. Neither party adequately briefs their respective positions on this issue, nor points the Court to any applicable legal authority. Nonetheless, for the reasons explained below, this Court declines to dismiss Defendants SW and SWI at this juncture.

A corporation's capacity to sue or be sued is governed by the law under which it was organized or generally, for all other parties, by the law of the state where the court is located. See Fed. R. Civ. P. 17(b)(2)-(3). As to SW, even if the entity never existed as a corporation, an action may still be “maintained against the user of a trade name or fictitious name,” whether or not the name has been registered or reported with the Ohio Secretary of State. See Ohio Rev. Code § 1329.10(C).

SWI LLC's capacity to be sued, on the other hand, is governed by Ohio Rev. Code § 1701.88. Under the statute “[t]he cancellation of [an entity's] corporate charter by the Ohio Secretary of State . . . do[es] not prevent a plaintiff...