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Schenck v. Orosz

Schenck v. Orosz

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Published by propertyintangible
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Published by: propertyintangible on Nov 13, 2013
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12/02/2013

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UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF TENNESSEENASHVILLE DIVISIONRUSSELL SCHENCK and BETHANY)PRIMROSE d/b/a INSOMNIAC ARTS,))Plaintiffs,))Case No. 3:13-CV-0294v.)Judge Aleta A. Trauger)CALE OROSZ and CASE DOODLE, LLC,))Defendants,)MEMORANDUM
Pending before the court are several motions relating to the plaintiffs’ AmendedComplaint. The plaintiffs have filed a Motion for Registration Determination and Restraint of Further Infringement (Docket No. 24) (“Motion for Registration”), to which the defendants fileda Response in opposition (Docket No. 30), and the plaintiffs filed a Reply (Docket No. 40). Thedefendants have filed a Motion to Dismiss the Amended Complaint (Docket No. 28), to whichthe plaintiffs filed a Response in opposition (Docket No. 37), and the defendants filed a Reply(Docket No. 45). The plaintiffs have also filed a Motion for Preliminary Injunction (Docket No.33), to which the defendants filed a Response in opposition (Docket No. 46), and the plaintiffsfiled a Reply (Docket No. 52).For the reasons stated herein, the defendants’ Motion to Dismiss will be granted in partand denied in part, the plaintiffs’ Motion for Preliminary Injunction will be granted in part anddenied in part, and the plaintiffs’ Motion for Registration will be denied in part on the merits anddenied in part as moot.
BACKGROUND
1
Case 3:13-cv-00294 Document 58 Filed 11/07/13 Page 1 of 31 PageID #: 1200
 
I.Overview
The plaintiffs, Bethany Primrose and her husband Russell Schenck, run a business called“Insomniac Arts” (“Insomaniac”), which has a principle place of business in Nashville,Tennessee.
1
 Primrose creates graphic designs (“Graphic Designs”) that Insomniac prints ontogoods such as mobile phone cases, tablet covers, mugs, t-shirts, and other novelty items. Insomniac utilizes product images created by Primrose (“Product Images”) to market and sellthese items online. The plaintiffs claim copyright protection – premised on both registered andunregistered copyrights – in the Graphic Designs and Product Images. The gravamen of the plaintiffs’ Amended Complaint is that Nevada resident Cale Orosz, operating through “CaseDoodle LLC” (“Case Doodle”), “Ecello electronics,” and/or “squigglecase.com”, essentiallycopied and counterfeited Insomniac’s web pages, product designs, and products, in violation of the Copyright Act, 17 U.S.C. § 101
et seq
. Before the plaintiffs filed this lawsuit, they wrote a March 18, 2013 letter toHostgator.com LLC (“Hostgator”), the internet service provider (“ISP”) for squigglecase.com,asking Hostgator to disable several hundred squigglecase.com “url” links that allegedlycontained infringing material. Hostgator complied with that request.
II.Procedural History and the Instant Motions
The plaintiffs filed their initial Complaint on April 2, 2013. (Docket No. 1.) On May 29,2013, the plaintiffs filed an Amended Complaint (Docket No. 22), which they verified through aseparate Verification on June 24, 2012. (Docket No. 32.)
1
The Amended Complaint does not state the nature of Insomniac Arts’ corporateexistence, if any.2
Case 3:13-cv-00294 Document 58 Filed 11/07/13 Page 2 of 31 PageID #: 1201
 
On May 29, 2013, the plaintiffs filed the instant Motion for Registration, which asked thecourt (1) to declare the unregistered copyrights “registered” for purposes of the Copyright Act;and (2) to restrain the defendants from (a) causing Hostgator to “replace” (
i.e.
, to enable) thelinks identified in the Takedown Notice and/or (b) from placing infringing material onlinethrough any ISP. On June 12, 2013, the defendants filed the instant Motion to Dismiss, arguingthat (1) the plaintiffs have improperly asserted claims based on unregistered copyrights andcopyrights whose effective dates post-dated the Complaint, and (2) the plaintiffs’ allegations of copyright infringement failed to meet the requisite pleading standard.Apparently in response to the defendants’ positions with respect to the Motion for Registration and the Motion to Dismiss, the plaintiffs filed the instant Motion for PreliminaryInjunction. In support of the Motion for Preliminary Injunction, the plaintiffs have filed (1)various exhibits (Docket No. 33, Exs. 1-5, including subparts; and Docket No. 52, Exs. 1-3), (2)a Memorandum of Law (Docket No. 34), (3) a Verification of the Amended Complaint (Docket No. 32), and (4) the Affidavit of Bethany Primrose on Copyright Registration and Enforcement(Docket No. 36).
2
 In opposition, the defendants filed a Memorandum of Law (Docket No. 47),three exhibits summarizing information in the record (Docket No. 46, Exs. 1-3), and two exhibitsconsisting of internet printouts (
id.
, Exs. 4-5). The defendants did not file any sworn statementsto rebut the plaintiffs’ verified Amended Complaint allegations or the factual averments in thePrimrose Affidavit. Neither party requested a hearing on the Motion for Preliminary Injunction. Because themotion can be resolved without the need for an evidentiary hearing, the court finds that an
2
The plaintiffs did not file a proposed injunction order.3
Case 3:13-cv-00294 Document 58 Filed 11/07/13 Page 3 of 31 PageID #: 1202

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