District Court of the United States Southern Judicial District of New York

National Indoor Soccer, Inc. Plaintiff v. Milieu Vendors, Inc., Defendant

#CIV. S-10-1788 DEFENDANT’S MOTION TO DISMISS COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT:

MILIEU VENDORS, INC., Defendant in the above styled and numbered cause, and files this Motion to Dismiss Complaint. The Defendant would respectfully show the Court the matters described and detailed in the accompanying Memorandum of Law of same date.

January 18, 2012

[George C. Marshall, The Law Offices of Overlord and Coronet, Leesburg, VA]

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their team trademarks consists of names such as Bullets and Chiefs that could be affixed to various sports organizations. para. (Complaint. Milleu Vendors is a sports business that specializes in selling jerseys to different stores in order to generate profits. and were not influenced by the names of the National Indoor Soccer teams. ( Complaint. Their corporation is located in New York. para. 6).1). (January 10. (Complaint. National Indoor Soccer League’s success has fluctuated throughout the years as they have had to reorganize through miscellaneous problems. ( Complaint. 8). The complainant went through an unexplained hiatus from 2008 to 2010. 2). Although NIS claims to persistently enforce their trademarks. and Dogs affixed them. These jerseys were independent of the National Sports League. NIS registers the full team names in their league as trademarks. Milleu Vendors sold soccer shirts that had names such as Rigs. this organization’s activities are inconsistent as pertaining to perpetuating their team marks.STATEMENT OF FACTS National Indoor Soccer is a sports conglomerate whose goal is to conduct soccer games for the enjoyment of the general public. para. However. A sole customer of NIS had seen Milleu Vendors’ market this jersey and notified NIS of his confusion. v Milleu Vendors. para. ( Complaint.5). National Indoor Soccer Inc. ( Complain. ( Complaint. Chiefs. para. para. (Complaint. para. Although this sports league have been in business since 1999. during which time they did not send any cease and desist letters. 10). (Complaint. and does frequent business in Delaware. 2). 6). 10). However. 2012) para. the plaintiff has only registered their team marks in 2002. para. there were no official surveys conducted to substantiate this customer’s 2 .

because they stated that Milleu Vendors had committed trademark infringement. this complaint must be dismissed because the 3 . NIS forwarded a cease and desist letter to Milleu Vendors on August 15. but continued to conduct its business. 2011. the complainant’s letter sought to impose on Milleu Vendors a command to stop selling Milleu Vendors jerseys that National a potential lawsuit if they did not stop using names which NIS had trademarked. Milleu Vendors did not follow the letter’s instructions. Subsequently. Specifically. and the obesity epidemic among American children will increase.confusion with other people. The Surgeon General has deemed a substantial proportion of young children unfit to perform even moderate activity. National Indoor League’s lawsuit is undermining these noble efforts by restricting customer’s ability to purchase jerseys from the outlets that they choose. Nevertheless. Milleu Vendors can prove that they did not ARGUMENT LIKELIHOOD OF CONFUSION. NIS filed a lawsuit against Milleu Vendors. SUMMARY OF ARGUMENT National Indoor League’s complaint will have dangerous ramifications if allowed to be entertained by the court. these customers’ children will be discouraged from participating in sports. sports organizations such as the National Football League and Major League Baseball have heroically tried to take on this obesity epidemic by encouraging youth to keep physically active. As a result. This National Indoor Soccer fan also did not give conclusive evidence to substantiate his allegations of customer confusion. Under the Second Circuit case law. Consequently. However. A.

the similarity of plaintiff's and defendant's marks. The Second Circuit has consistently ruled that in order to prove likelihood of confusion. actual confusion between defendant’s and plaintiff’s products. 15 U. the defendant’s intentions. However. The Second Circuit ruled that the defendant had interfered with plaintiff’s business by 4 .complainant has not asserted enough evidence to validate their claims of likelihood of confusion. 2.C § 1127 (2005) B. and the sophistication of buyers. the quality of defendant's product in comparison with the plaintiff’s original trademark. the plaintiffs must have conclusive evidence of actual customer confusion that was proven through official so that it prevented interference with business. Under Polaroid. The Lanham Act has substantiated the importance of likelihood of confusion by stating that the plaintiff only has a cause of action if there is conclusive evidence of likelihood of confusion Under the Polaroid test. the plaintiff must show that there was genuine customer confusion.S. The Polaroid test has eight factors to prove trademark infringement. which are the strength of the particular plaintiff’s mark. the likelihood that plaintiff will be able to produce merchandise like defendant’s. strength of the mark. the court held that genuine customer confusion encompasses verifiable evidence there is Indistinguishable differences between marks can be defined as the duplicate and the original’s similarities are so negligible as to insign See The Lanham (Trademark) Act. the proximity of the products as defined by location and actual competition. 1. in order to prove likelihood of confusion. and similarity between marks that would interfere with business 3. the Second Circuit has emphasized that these eight factors determine the focal element of likelihood of confusion.

Next.” Dallas Cowboys Cheerleaders. the court judged that the defendant had committed trademark infringement by interfering with the business of the Dallas Cowboys. As a result. Id. because the defendant’s movie was of such dubious morality that the plaintiff’s business would suffer. the uniform depicted in "Debbie Does Dallas" unquestionably brings to mind the Dallas Cowboys Cheerleaders. v.exploiting a recognizable brand to create a potential for likelihood of confusion. 1979). 205 (2d Cir. customers and other people who were vital to the well-being of a particular franchise would be misled about the true nature of the replica. C. Indeed. Id at 204. Milleu Vendors can point to prior Second Circuit case law as evidence that the plaintiff’s allegations of likelihood of confusion are without merit. it is hard to believe that anyone who had seen the defendants' sexually depraved film could ever thereafter disassociate it from plaintiff's cheerleaders.2d 200. Inc. In the case of Milleu Vendors. Therefore. the court stated that the element of likelihood of confusion was when the replica of the trademark and the actual trademark itself were so identical that any differences were insignificant. the Second Circuit states that the defendant's film jeopardized future Dallas Cowboys business: “In the instant case. Pussycat Cinema. Inc had 5 . Therefore.. Consequently. NIS stated that Milleu Vendors had used names and colors that were similar to NIS merchandise and therefore produced a likelihood of confusion. NIS’s affirmation that Milleu Vendors’ production of shirts identical to National Indoor Soccer. the Second Circuit concluded that this likelihood of confusion would result in damaging consequences. First. 604 F. Id. Ltd. See (arguing the sentiment that people would mistakingly think that the duplicate had derived from the business when in fact they were not related).

NIS’s statement that there was a likelihood of confusion is refutted. Manderjaffey.intruded upon NIS’s business by lessening the value of the products can be rebutted. Mr. but to sell merchandise to its own set of customers.g 583 F.3d at 961 Therefore. Milleu Vendors’ goal was not to produce NIS replicas. See e. [Rule Application] CONCLUSION 6 . See e. the NIS spokesman. could not provide evidence of actual customers’ confusion that interfered with business in spite of his assertions.g Id at 962 ( depicting the notion that people would be discouraged to buy future NIS products if they thought that NIS merchandise were subpar).