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Edward W. Tovey v. Nike et al., 1:12-cv-00448-CAB (N.D. Oh. Jul. 3, 2012) (Magistrate Judge's R&R recommending dismissal of some claims but not others)

Edward W. Tovey v. Nike et al., 1:12-cv-00448-CAB (N.D. Oh. Jul. 3, 2012) (Magistrate Judge's R&R recommending dismissal of some claims but not others)

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Published by: Charles Colman Law, PLLC on Jul 03, 2012
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12/04/2013

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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF OHIOEASTERN DISTRICTEDWARD W. TOVEY,Plaintiff,v.NIKE, INC.,
et al.
,Defendants.))))))))))CASE NO. 1:12-cv-0448JUDGE BOYKOMAGISTRATE JUDGE VECCHIARELLI
REPORT AND RECOMMENDATION
Doc. No. 11This case is before the magistrate judge on referral. Before the court is the motionof defendants Nike, Inc. (“Nike”) and Wieden + Kennedy (“W+K”) to dismiss the casepursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can begranted. Doc. No. 11. Plaintiff, Edward W. Tovey (“Tovey”), opposes defendants’ motion.Doc. No. 12. For the reasons given below, defendants’ motion for summary judgmentshould be resolved as follows: (1)
GRANTED
as to Tovey’s first (trademark counterfeiting)and third (reverse confusion) grounds for relief; (2)
GRANTED
 
OR
Tovey should be givenan opportunity to
AMEND
with respect to his fifth (contributory trademark infringement),
Case: 1:12-cv-00448-CAB Doc #: 17 Filed: 07/03/12 1 of 30. PageID #: 151
 
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Exhibits 4, 4A, 5, and 5A, attached to the complaint, illustrate items of clothingusing Tovey’s “Boom Yo” marketing concept. The illustrations show that the word “Yo!”was included on the opposite side of the clothing item from the side containing the word“Boom!” One clothing item was marked by the words “Boom!” and “Yo!” on opposite sidesof the item only, without a depiction of a sports event or an athlete celebrating that event.2sixth (vicarious trademark infringement), and tenth (tortious interference with businessrelationships) causes of action; and (3)
DENIED
as Tovey’s second (trademarkinfringement), fourth (false designation of origin and unfair competition), seventh (commonlaw unfair competition), eighth (common law trademark infringement), and ninth (a violationof the Ohio Deceptive Trade Practices Act (“ODTPA”)) grounds for relief.I. BackgroundThe court views the facts, as it must, in the light most favorable to the plaintiff.Tovey pleads, or does not deny, the following facts.Tovey attended Hondros College in Independence, Ohio in the fall of 2005 to fulfillcourse requirements prior to taking the Ohio Real Estate Salesperson test. He attendedclass with Savannah Brinson (“Brinson”), girlfriend of professional basketball player LeBronJames (“James”). At the time, James had a marketing and sponsorship agreement withNike.Tovey conceived a line of sports clothing with the tagline, “BOOM YO” and marketedaround “game changing sports moments.” Tovey envisioned a depiction of a gamechanging event on one side of each clothing item with the word “BOOM” on that side. Onthe other side of the item would be a depiction of an athlete enjoying that event.
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Heshared this idea with Brinson. He hoped to reach an agreement with Brinson, James, andNike whereby Brinson would run the sports clothing business, James would providecontacts with Nike, and Nike would pay Tovey royalties for the use of “BOOM YO” in
Case: 1:12-cv-00448-CAB Doc #: 17 Filed: 07/03/12 2 of 30. PageID #: 152
 
3marketing a line of clothing.Tovey filed an intent-to-use trademark application for BOOM YO! with the UnitedStates Patent and Trademark Office (“PTO”) on July 16, 2005. The PTO issued theregistration on March 31, 2009 as United States Trademark Reg. No. 3,600,240. Theregistration for BOOM YOI covers its application to “[c]lothing, namely, t-shirts, sweatshirts,ball caps, shirts, shorts, shoes, and jackets” in International Class 25.When Tovey completed his coursework at Hondros College, he gave Brinson hisname and phone number in the hope that she would contact him if there were any interestin his BOOM YO clothing concept. He did not hear from Brinson, James, or Nike.On October 6, 2010, LeBron James posted the following on his Facebook page,“LeBron BOOM! SAY BOOM --www.youtube.com-- BOOM! This is what epic, game-changing moments look like. Experience them now at Nike.com.” A hyperlink to YouTubeconnected the page tohttp://www.youtube.com/watch?v=R7dMTGa4cHw,which, accordingto the complaint, “included videos of the new Nike advertising tag line called ‘BOOM.’” Thehyperlinked page at YouTube included the text, “BOOM! This is what epic, game-changingmoments look like. Experience them now at Nike.” Complaint at 4. The content had beenuploaded on October 1, 2010 and showed 257,522 views on October 6, 2010.Within days, Tovey discovered television commercials for Nike products on theESPN Network featuring game-changing moments in various sports and using the word“Boom.” According to the complaint, the commercials employed “exactly the same conceptPlaintiff had discussed with Brinson.”
Id.
. Friends and associates of Tovey who had knownof his “BOOM YO!” idea called, asking “if Plaintiff had made an agreement on the “BOOM”concept with Nike.”
Id.
Case: 1:12-cv-00448-CAB Doc #: 17 Filed: 07/03/12 3 of 30. PageID #: 153

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