Case 1:23-cv-00037-TWP-MG Document 24 Filed 03/14/23 Page 1 of 19 PageID #: 122

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

1.4G HOLDINGS, LLC, a Nevada limited-

liability company,

Plaintiff;
v.
Case No. 1:23-cv-00037-TWP-MG
NORTH CENTRAL INDUSTRIES, INC., an
Indiana corporation; GREAT GRIZZLY,
INC., an Indiana corporation; and R.
BROWN, INC., a Montana corporation;

Defendants.

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

1.4g Holdings, LLC (“Plaintiff” or “1.4g”), by and through its undersigned counsel,

hereby oppose Defendant R. Brown, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction

and Defendants’ Joint Motion to Dismiss, In Part, For Failure to State a Claim (brief at ECF No.

22; collectively, the “Motion”).

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Mark Brown’s (“Mr. Brown’s”) 1 remarkable representations support, rather than vitiate,
this Court’s exercise of jurisdiction over R. Brown, Inc. (“R. Brown”). Mr. Brown

acknowledges that R. Brown is a licensee of Indiana entity Great Grizzly, Inc. (“Great Grizzly”,

which does not contest personal jurisdiction) and co-licensee with Indiana entity North Central

Industries, Inc. (“NCI”, which does not contest personal jurisdiction either) and that R. Brown

itself sold goods infringing at least Plaintiff’s TIKI mark. Mr. Brown then describes a

1
There appear to be a number of men with the surname Brown involved in Defendants’
management, but as Mark Brown is the principal declarant in support of the Motion, Plaintiff
will characterize him as “Mr. Brown”.

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relationship between R. Brown and Great Grizzly that makes no sense in the absence of apparent

inexplicable nonfeasance (such as being named as a corporate treasurer but readily admitting that

“I do not actually do work as Treasurer of Great Grizzly and never have”; ECF No. 22-1 at ¶ 18).

The most logical conclusion that can be drawn from the entirety of Mr. Brown’s declaration is

that R. Brown and Great Grizzly are effectively alter egos and R. Brown is thus susceptible to

general personal jurisdiction in Indiana. This Court is bound to resolve all factual discrepancies

in favor of Plaintiff—including resolution in Plaintiff’s favor of non-credible assertions by

Defendant R. Brown—and allow this case to move forward if a prima facie case of personal

jurisdiction may be demonstrated from the record, 2 and the level of factual discrepancies created

by Mr. Brown’s declaration alone warrant such a determination. At a minimum, protestations of

a lack of minimum contacts by R. Brown with Indiana that are effectively contradicted by a

logical examination of Mr. Brown’s declaration certainly create a level of factual ambiguity that

warrants jurisdictional discovery under Seventh Circuit precedent.

With respect to Defendants’ motion to dismiss claims arising from Plaintiff’s XL mark,

Plaintiff pled all necessary facts to put Defendants on notice of a plausible theory by which

Defendants may be held liable for infringement. This is not a situation in which Plaintiff and

Defendants are in two completely different industries, selling two completely different types of

goods or services, as is the case in virtually all of Defendants’ cited case law: the Complaint

makes clear that Plaintiff owns the mark XL for use with fireworks, and that Defendants are

using the mark XL in commerce on fireworks. Defendants admit in Defendants’ briefing that

Defendants use “XL” on Defendants’ fireworks packaging (ECF No. 22 at 3, fn.4). While there

may be a question as a matter of law following discovery regarding whether Plaintiff’s and

Defendants’ uses of “XL” create a likelihood of confusion, there can be no reasonable dispute

that Plaintiff has met basic notice-pleading requirements and stated a claim for relief.

2
Bilek v. Fed. Ins. Co., 8 F.4th 581, 589 (7th Cir. 2021).

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Ultimately, there is little that Defendants contest in the Motion: merely whether R.

Brown, Inc. (“R. Brown”) is susceptible to general personal jurisdiction in Indiana based on what

appears to be R. Brown’s effective control over Great Grizzly, and whether Plaintiff adequately

pled Plaintiff’s intellectual-property-tort causes of action with respect to one of Plaintiff’s three

trademarks at issue. This case will proceed to discovery on, at a minimum, Plaintiff’s claims

against Defendants Great Grizzly, Inc. (“Great Grizzly”) and North Central Industries, Inc.

(“NCI”) regarding Plaintiff’s marks TIKI and GHOST and associated intellectual property. If

this Court has any question that, when all factual disputes are resolved in favor of Plaintiff, the

record does not reflect a prima facie showing of personal jurisdiction with respect to R. Brown,

Plaintiff requests jurisdictional discovery with respect to R. Brown. Further, if this Court does

not believe sufficient notice has been provided to Defendants of exemplars of Defendants’ own

infringing goods, Plaintiff requests the opportunity to file an amended complaint identifying all

known species of Defendants’ goods with respect to which Plaintiff seeks redress.

II. FACTS

Plaintiff is a Nevada-based company that designs, imports, and engages in wholesale and

retail sale of consumer-grade fireworks. ECF No. 1. Defendants NCI and Great Grizzly are

Indiana-based companies that design, import, and engage in wholesale sale, at a minimum, of

consumer-grade fireworks. ECF No. 1. Defendant R. Brown is a Montana-based company that is

Great Grizzly’s licensee for the design, import, and wholesale of consumer-grade fireworks, ECF

No. 22-1 at ¶ 11, and whose president, Mr. Brown, is the treasurer of Great Grizzly. ECF No. 1.

R. Brown allegedly does no business in Indiana, “does not sell any Great Grizzly products

developed by NCI”, ECF No. 22-1 at ¶ 22, and has only had one intercompany product sale

transaction with NCI in the past five years, id. at ¶ 24.

Plaintiff relevantly owns three registered trademarks in the scope of use of “fireworks”:

TIKI, GHOST, and XL. ECF No. 1 at ¶ ¶ 16-19. Defendants have infringed all three trademarks

in the packaging and sale of Defendants’ own fireworks, id. at ¶ ¶ 25-71, and have also infringed

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Plaintiff’s trade dress through Defendants’ goods sold under TIKI-inclusive and GHOST-

inclusive marks. ECF No. 1 at ¶ ¶ 82–93. Plaintiff exhibited to Plaintiff’s Complaint photos of

exemplars of one TIKI-inclusive and one GHOST-inclusive infringing trade dress, not intended

in any way to be exhaustive depictions of all of Defendants’ accused goods, the full scope of

which Plaintiff cannot ascertain comprehensively without discovery.

In Defendant R. Brown’s motion to dismiss the Complaint under FRCP 12(b)(2), Mr.

Brown notably claims that:

“13. R. Brown has very limited interactions with Great Grizzly,

which in the past have only consisted of a few phone calls between
R. Brown and Great Grizzly.” (hereinafter the “Limited
Interactions Representation”)

“15. R. Brown’s website is called http://www.greatgrizzly.net/

(the “R. Brown Website”) and displays Great Grizzly’s logo. Great
Grizzly has no role in creating or maintaining that website. In fact.
the phone number listed on the R. Brown Website is [omitted],
which is a Montana phone number belonging to R. Brown, and the
“contact” address is 9400 Inspiration Drive, Missoula, Montana
59808 (R. Brown’s principal office address).” (hereinafter the
“Website Control Representation”)

“18. R. Brown and Great Grizzly are separate business entities.

Besides R. Brown being a licensee of the Great Grizzly brand, the
only connection between R. Brown and Great Grizzly is that I am
the Treasurer of Great Grizzly. However, I have no common duties
between my role as President of R. Brown and Treasurer of Great
Grizzly. My role as Treasurer of Great Grizzly is really in name-
only [sic], as I do not actually do work as Treasurer of Great
Grizzly and never have.” (hereinafter the “Treasurer
Representation”)

“19. I have never traveled to Indiana for any business reason. R.

Brown has never sent anyone to travel to Indiana for any business
reason.” (hereinafter the “Indiana Travel Representation”)

“22. NCI develops its own products via its license with Great
Grizzly. R. Brown is not involved in NCI’s development of Great
Grizzly products and does not sell any Great Grizzly products
developed by NCI.” (the “NCI Independence Representation”)

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“26. The only product including the word “Tiki” that R. Brown
has sold was the “Tiki Bar” 90 Shot Roman Candle. That product
has been has never been [sic] sold or shipped to Indiana and is no
longer sold by R. Brown.” (the “Tiki Bar Representation”;
collectively with the Limited Interactions Representation, the
Website Control Representation, and the Treasurer Representation,
the Indiana Travel Representation, and the NCI Independence
Representations, the “Brown Representations”).

As discussed in detail infra, the Brown Representations are internally inconsistent in

multiple respects.

III. STANDARDS

A. Plaintiff Is Only Required At This Time To Make A Prima Facie Case Of

Personal Jurisdiction Against R. Brown To Avoid Dismissal Under FRCP

12(b)(2).

The Seventh Circuit has held that:

When the district court holds an evidentiary hearing to determine

jurisdiction, the plaintiff must establish jurisdiction by a
preponderance of the evidence. [Citations.] However, when the
district court rules on a defendant’s motion to dismiss based on the
submission of written materials, without the benefit of an
evidentiary hearing, as the district court did here, the plaintiff
“need only make out a prima facie case of personal jurisdiction.”
[Citations]. In evaluating whether the prima facie standard has
been satisfied, the plaintiff “is entitled to the resolution in its favor
of all disputes concerning relevant facts presented in the record.”

Purdue Research Found. v. Sanofi–Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003), quoting

Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002) and Nelson v. Park Industries, Inc.,

717 F.2d 1120, 1123 (7th Cir. 1983). Thus, at this time, this Court may assert personal

jurisdiction if the record reflects a prima facie showing of personal jurisdiction over R. Brown,

with all disputes resolved in Plaintiff’s favor. While the Seventh Circuit has not expressly

addressed the issue of incredible assertions made in a defendant’s declarations, logic dictates, as

the Ninth Circuit has recognized, that incredible assertions by a defendant may effectively be

disregarded by the Court as supportive of that defendant’s position, a test the Ninth Circuit

expressly described as consistent with the Seventh Circuit’s standard of resolving all factual

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disputes in the plaintiff’s favor. Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d

1325, 1326–1326 (9th Cir. 1985), citing Neiman v. Rudolf Wolff & Co., 619 F.2d 1189, 1190 (7th

Cir. 1980), cert. denied, 449 U.S. 920 (1980).

B. Plaintiff Is Not Required To Identify Every Instance Of Infringement To

Avoid Dismissal Under FRCP 12(b)(6).

The Seventh Circuit has also held that:

…[P]leadings in federal court need not allege facts corresponding

to each “element” of a statute. It is enough to state a claim for
relief—and [FRCP] 8 departs from the old code-pleading practice
by enabling plaintiffs to dispense with the need to identify, and
plead specifically to, each ingredient of a sound legal theory.
[Citations.] Plaintiffs need not plead facts; they need not plead law;
they plead claims for relief. Usually they need to no more than
narrate a grievance simply and directly, so that the defendant
knows what he has been accused of. … Complaints initiate the
litigation but need not cover everything necessary for the plaintiff
to win; factual details and legal arguments come later. A complaint
suffices if any facts consistent with its allegations, and showing
entitlement to prevail, could be established by affidavit or
testimony at a trial.

Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005). “The federal rules require… only that the

complaint state a claim, not that it plead the facts that if true would establish (subject to any

defenses) that the claim was valid.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). There is

no requirement to, as Defendants appear to argue, provide a photographic depiction of every

possible infringement in Plaintiff’s initial pleading, 3 or identify, pre-discovery, every such

infringement.

Defendants’ authority does not support a change in this standard. Defendants rely on

Fortres Grand Corp. v. Warner Bros. Entertainment Inc., 763 F.3d 696 (7th Cir. 2014) as their

only in-circuit authority for the notion that Plaintiff cannot demonstrate a plausible claim for

relief under Ashcroft v. Iqbal, 556 U.S. 662 (2009), unless the face of the Complaint itself allows

this Court to conduct a likelihood-of-confusion analysis under Helene Curtis Industries v.

3
Defendants take issue with the fact that Plaintiff only provided photographic exhibits of two
species of Defendants’ accused goods, without apparently recognizing that those exhibits are (a)
exemplary only and (b) related to Plaintiff’s trade dress claims, not mark infringement claims.

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Church & Dwight Co., 560 F.2d 1325 (7th Cir. 1977). Fortres Grand does not impose such a

requirement, however. Fortres Grand arose from a highly idiosyncratic set of facts: the plaintiff

software company owned the mark CLEAN SLATE for a cybersecurity program used to wipe

user data from shared public computers. 763 F.3d at 698. A plot device in Warner Bros.’ film

The Dark Knight Rises is a secret internet tool called “the clean slate” that “enables an individual

to erase all traces of her criminal past from every database on earth.” Id. at 699. Fortres Grand

allegedly experienced a notable drop in CLEAN SLATE sales after The Dark Knight Rises’

release and sued Warner Bros. for mark infringement, alleging likelihood of confusion that

resulted in customer distrust of CLEAN SLATE by consumers believing it to be connected,

either through traditional or reverse confusion, to the film’s “the clean slate”. The Northern

District of Indiana dismissed for failure to state a claim, and the Seventh Circuit affirmed. “The

problem here,” the Seventh Circuit held, “is that Fortres Grand wants to allege confusion

regarding the source of a utilitarian desktop management software based solely on the use of a

mark in a movie and two advertising websites… Fortres Grand has alleged no facts that would

make it plausible that a super-hero movie and desktop management software are ‘goods related

in the minds of consumers in the sense that a single producer is likely to put out both goods.’” Id.

at 703–704 (internal citation omitted). In no way does Fortres Grand require, as Defendants

advocate, that sufficient facts be pled to allow a Helene Curtis analysis at the motion-to-dismiss
level in every mark infringement case. This is not a case involving a plaintiff and defendants in

two different industries, placing two completely different types of goods (such as, on one hand,

cybersecurity software, and, on the other, a Batman movie) into commerce, so that the

plausibility of asserted consumer confusion is not facially apparent. In this case, as Plaintiff

made clear in the Complaint, Plaintiff owns the XL Mark for use with fireworks. ECF No. 1 at ¶

18. Defendants have used and are using the XL Mark in commerce for use with fireworks. Id. at

¶ 28. It is effectively axiomatic that a company using a mark in a narrow scope of use states a

plausible trademark infringement claim against a company using the same mark in the same

narrow scope of use simply by so alleging.

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Defendants’ citations to out-of-circuit cases, both published and unpublished, do not

support dismissal. The out-of-circuit D.B.C. Corp. v. Nucita Venezolana, C.A., 464 F. Supp. 3d

1323 (S.D. Fla. 2020) and Public Free Will Corp. v. Verizon Communications Inc., case no. 15-

CV-6354-RRM-JO, 2017 U.S. Dist. LEXIS 39168, 2017 WL 1047330 (E.D.N.Y. March 17,

2017), are factually and legally inapposite. In D.B.C., the Southern District of Florida

specifically grappled with a complaint that named five different defendants (including a

Venezuelan company, a Dominican Republic corporation, and a British Virgin Islands

corporation) and never singled out which of the defendants was liable for the mark infringement

in question. There was no question in the court’s mind from the complaint that the accused

marks, PIRULIN and PIRUCREAM, were being used in commerce for cookies. The problem,

decried by the court throughout the opinion, was that the plaintiff pled every cause of action

against all five defendants, and it was logically impossible that, e.g., both the Venezuelan and

Dominican defendants could have been responsible for the use in United States commerce of

PIRULIN and PIRUCREAM. Indeed, Defendants in this case do not argue that Plaintiff failed to

engage in such a distinction. Finally, in the unpublished Public Free Will, the Eastern District of

New York dismissed a mark infringement complaint by an organization that did not even

demonstrate that the organization owned the mark or had used it in commerce. These factual

scenarios are far afield from the situation present here: one company is accusing three other
companies in a niche industry of intellectual property infringement and misappropriation with

respect to the extremely narrow scope of use in which all the parties have used Plaintiff’s

intellectual property.

IV. ARGUMENT

A. Mr. Brown’s Representations Support Jurisdiction Over R. Brown—Or, At

Minimum, Jurisdictional Discovery.

1. The Complaint States Facts Supporting A Prima Facie Case For

Personal Jurisdiction Over R. Brown.

The Complaint has already set forth allegations supporting personal jurisdiction over R.

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Brown. ECF No. 1 at ¶¶ 8–14. The Complaint asserts claims of intellectual property

infringement and misappropriation over three entities—two of which are unquestionably

susceptible to personal jurisdiction in Indiana, and appear to have a significant degree of

intercompany enmeshment. Id. at ¶¶ 7–14. Plaintiff’s trademarks TIKI, GHOST, and XL, and

trade dress with respect to TIKI- and GHOST-marked goods, have been infringed by Defendants

in goods bearing Defendants’ house mark GREAT GRIZZLY. Id. at ¶¶ 42–61, Exhibits 3-4

(ECF Nos. 1-3 and 1-4). R. Brown is an exclusive licensee of an Indiana corporation—Great

Grizzly—and effectively shares assets with Great Grizzly in the form of, without limitation, the

<greatgrizzly.net> domain name. ¶¶ 12-14. R. Brown’s president is Great Grizzly’s treasurer. ¶¶

11. Thus, inferentially, all of the accused goods emanating from Defendants bear the trademark

of a registered Indiana corporation, and that corporation, by all appearances, is a close affiliate of

R. Brown at a minimum, if not an alter ego.

2. R. Brown Acknowledges, Inter Alia, Licensee Status And

Infringement, Which Support A Finding Of Personal Jurisdiction.

R. Brown acknowledges additional facts highly relevant to this Court’s jurisdiction. First,

R. Brown acknowledges that R. Brown is a licensee of Great Grizzly and sells fireworks under

the GREAT GRIZZLY mark. ECF No. 22 at 4. Second, R. Brown acknowledges infringement,

at a minimum, of Plaintiff’s TIKI mark. 4 Id. at 5; see also July 3, 2022 communication from

John Brooke, Esq. to undersigned counsel, attached hereto as Exhibit 1. As discussed further

infra, it is impossible to conclude otherwise than that R. Brown obtained the accused TIKI-

marked infringing goods from either Great Grizzly or NCI.

R. Brown further admits facts that highlight its apparent entanglement with, at a

minimum, Great Grizzly, and support that R. Brown’s presence in Indiana is more pervasive than

4
Throughout the Motion, Defendants appear to be operating under the misapprehension that
Defendants’ only infringing goods that are the subject of this lawsuit are the exemplars whose
photographs are exhibits to the Complaint. This is false. Plaintiff is suing for all instances of
infringement of Plaintiff’s TIKI, GHOST, and XL marks. Defendants are presumably quite
capable of looking at Defendants’ inventory and catalogs and identifying all instances of usage
of each of these marks.

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R. Brown argues. Specifically, R. Brown further admits, via the declaration of R. Brown’s

president Mark Brown (ECF No. 22-1), that it is actually R. Brown that controls and operates the

website reposed at <greatgrizzly.net>. ECF No. 22-1 at ¶ 15. Mr. Brown further admits that Mr.

Brown is, indeed, the treasurer of Great Grizzly, an Indiana corporation—although Mr. Brown

denies that Mr. Brown actually does anything in that regard, a curious assertion discussed infra.

ECF No. 22-1 at ¶ 18. Viewing these assertions in the light most favorable to Plaintiff, as this

Court must do, it appears at least plausible that, at a minimum, Great Grizzly is acting effectively

as R. Brown’s alter ego (notwithstanding Great Grizzly’s status as the licensor of the GREAT

GRIZZLY mark), without observance of corporate formalities, and Great Grizzly’s connection to

Indiana and general jurisdiction therein may be imputed to R. Brown, which utilizes the GREAT

GRIZZLY mark and resources even though the licensing entity is held out to the public as an

Indiana corporation.
3. The Brown Representations Are Only Explainable If R. Brown And

Great Grizzly Are Alter Egos Or Other Nonfeasance Is Occurring.

Given that this Court must resolve all factual disputes in Plaintiff’s favor to assess

whether Plaintiff has made a prima facie case of personal jurisdiction, and that incredible

assertions may be disregarded in favor of Defendants and construed in favor of Plaintiff, multiple

assertions in Mr. Brown’s declaration warrant this Court’s conclusion that R. Brown has a

greater level of connection to Indiana than R. Brown has argued.

a. The Limited Interactions Representation Is Not Credible

Unless There Is A Jurisdiction-Conferring Level Of Contact

Or Identity Between R. Brown And Great Grizzly—Or

Nonfeasance By Mr. Brown.

If Mr. Brown is to be believed that, presumably since no later than 2017 when Mr. Brown

became president of R. Brown (ECF No. 22-1 at ¶ 2), the “very limited interactions” between

putative co-exclusive licensee R. Brown and licensor Great Grizzly “have only consisted of a

few phone calls”, the only credible explanation is that the relationship between R. Brown and

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Great Grizzly is so enmeshed, with an absence of observance of corporate formalities, that they

may be viewed as one and the same for jurisdictional purposes. It is not credible to assert that a

licensor and licensee (even a co-exclusive licensee) engage in no more “interactions” than “a few

phone calls” over at least five years. Most notably, if this was actually true, Mr. Brown—who

admits that he is the treasurer of Great Grizzly and is thus at least potentially a fiduciary as a

matter of law of Great Grizzly, see In re Atkins, 16 N.E.3d 950 (Ind. 2014)—has admitted facts

that raise a question of whether Great Grizzly has abandoned the GREAT GRIZZLY mark

through naked licensing.

If Great Grizzly’s level of quality control over R. Brown’s use of the GREAT GRIZZLY

mark amounts to “a few phone calls” since 2017, Great Grizzly may have abandoned the

trademark altogether, and Mr. Brown’s admission of same to this Court is at best unwise and

potentially a breach of his fiduciary duties as the treasurer of Great Grizzly. 5 The Seventh Circuit
has consistently held that a naked license abandons a mark and will arise unless “the control

retained by the licensor [is] sufficient under the circumstances to insure that the licensee’s goods

or services would meet the expectations created by the presence of the trademark.” Eva’s Bridal,

Ltd. v. Halanick Enterprises, Inc., 639 F.3d 788, 790 (7th Cir. 2011), quoting RESTATEMENT (3D)

OF UNFAIR COMPETITION § 33, comment (a) (1995) (other citations omitted). “Trademark law

requires that ‘decisionmaking authority over quality remains with the owner of the mark.’” Id.,

quoting RESTATEMENT § 33, comment (c). Nowhere in the Brown Dec. is any explanation of the

nature of the license agreement between R. Brown and Great Grizzly—and it is difficult to

fathom how “very limited interactions” in the form of “a few phone calls” can give rise to any

informed decisionmaking by Great Grizzly with respect to the quality of goods sold under the

GREAT GRIZZLY mark. There are three possibilities: (1) Mr. Brown is not fully disclosing all

of the communications between Great Grizzly and R. Brown; (2) Mr. Brown has admitted, as a

5
As discussed infra, it is incredible—literally, not credible—that Mr. Brown holds the title of a
corporate fiduciary but does nothing in that role, unless R. Brown, Great Grizzly, and potentially
even NCI are so enmeshed without observance of corporate formalities that they may be
considered the same for purposes of general jurisdiction in Indiana.

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fiduciary of Great Grizzly, that Great Grizzly has abandoned its mark; and/or (3) there is some

level of enmeshment or identity between Great Grizzly and Brown that actually makes a few

phone calls over five years “sufficient under the circumstances” to avoid a naked license. Such a

level of alter-ego identity could give rise to R. Brown’s potential liability for Great Grizzly’s

torts, particularly given that R. Brown admits to having sold allegedly infringing TIKI-marked

goods in commerce that R. Brown could only have received from Great Grizzly or NCI, as

discussed in greater detail infra. See Gaskins v. Vencor, Inc., case no. IP 99-1122-C T/G, 2011

U.S. Dist. LEXIS 10671 (S.D. Ind. July 1, 2001). This Court is entitled to resolve this factual

discrepancy in Plaintiff’s favor, but, at a minimum, jurisdictional discovery is warranted to

investigate this highly unlikely scenario of a purported co-exclusive licensee somehow being so

engaged with the licensor that “a few phone calls” are all that is necessary to maintain the

relationship.

b. The Website Control Representation Supports A Finding Of

Enmeshment Between R. Brown And Great Grizzly, And

Hence Indiana Jurisdiction.

R. Brown’s utilization of the <greatgrizzly.net> domain name for R. Brown’s own

business is so difficult to reconcile with any explanation other than corporate enmeshment that

this Court may view same as further evidence supporting a prima facie case of Indiana
jurisdiction for R. Brown. For reasons that Mr. Brown does not explain, even though the mark

GREAT GRIZZLY is owned by Great Grizzly, an Indiana corporation, that domain name

resolves to R. Brown’s website, and Mr. Brown acknowledges that “Great Grizzly has no role in

creating or maintaining that website.” ECF No. 22-1 at ¶ 15. WHOIS records for

<greatgrizzly.net> are redacted for privacy except for the state of the registrant, which is listed as

Montana. Exhibit 2 at 2. This is yet another instance of either an admission against interest by

purported Great Grizzly treasurer Mr. Brown to what looks like, at best, a naked license, or,

more likely, further evidence of the corporate alter ego relationship between R. Brown and Great

Grizzly that warrants resolution by this Court in favor of Plaintiff.

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c. If The Treasurer Representation Is True, There Can Only Be

Either Nonfeasance Or Alter-Ego Status.

The circumstances surrounding Mr. Brown’s role as treasurer of Great Grizzly—again,

an Indiana corporation—are not susceptible to a sensible factual resolution consistent with the

existence of two discrete entities respecting corporate formalities, and this Court may thus

construe this factual dispute in Plaintiff’s favor. Mr. Brown’s candid admission that Mr. Brown’s

“role as Treasurer of Great Grizzly is really in name-only [sic], as I do not actually do work as

Treasurer of Great Grizzly and never have” (ECF No. 22-1 at ¶ 18) is inexplicable unless: (a)

Great Grizzly is inappropriately holding out Mr. Brown as a corporate officer with the

knowledge that Mr. Brown is not actually fulfilling the requirements of that job, and/or (b) R.

Brown’s and Great Grizzly’s affairs are so intertwined that the two entities are effectively

inseparable. It is a venerable proposition of corporate law that “the legal presumption is that

corporations, officers, and men faithfully discharge the duties imposed upon them and act within

their powers.” Mine & Smelter Supply Co. v. Stockgrowers’ Bank, 173 F. 859, 855 (8th Cir.

1909). If Mr. Brown truly does nothing in his role as Great Grizzly treasurer, the most

reasonable explanation for such nonfeasance is that Great Grizzly is part of an inappropriately

enmeshed closely held bundle of entities with respect to which corporate formalities are not

observed, but which contains an entity: (a) holding itself out to the public as having been
organized under Indiana law, and (b) owning and licensing intellectual property under licensing

agreements that are presumably governed by Indiana law. Plaintiff respectfully requests that this

Court view Mr. Brown’s assertions in the light most favorable to Plaintiff and find that R. Brown

is subject to personal jurisdiction in Indiana. At a minimum, this Court would appropriately

allow jurisdictional discovery by Plaintiff as to the rationale for Mr. Brown’s appointment as an

officer of a company in a state Mr. Brown has purportedly never even visited on business and

with which company Mr. Brown purportedly has only exchanged “a few phone calls.” ECF No.

22-1 at ¶ 13.

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d. The Indiana Travel Representation Is Not Credible In The

Absence Of Alter-Ego Status.

This Court may further resolve in Plaintiff’s favor the incredible factual assertion that

neither Mr. Brown nor anyone else at R. Brown has traveled to Indiana “for any business

reason.” Once again, Mr. Brown appears to be suggesting to this Court that there is absolutely no

connection between Great Grizzly and R. Brown so that the exercise of Indiana jurisdiction over

R. Brown would be not only unjust but fairly ludicrous. Yet, R. Brown admits to being Great

Grizzly’s licensee, to ownership and control of the content reposed at the domain

<greatgrizzly.net>, and to R. Brown’s president being Great Grizzly’s treasurer. It is perhaps

possible in 2023 for these circumstances to be true without travel being required, but then query

why it is necessary to qualify that travel by Mr. Brown and others at R. Brown to Indiana

occurred, but not “for any business reason”. Query further why the qualification also excludes

having engaged in business-related communications or tasks while present in Indiana for other

reasons—perhaps family-related, or recreational, but not reasonably excluding altogether

discussion and coordination of business. This assertion may thus be viewed by this Court in the

light most favorable to Plaintiff: not credible and supportive of a finding of general personal

jurisdiction in Indiana for R. Brown.

e. The NCI Independence Representation And The Tiki Bar

Representation Are Entirely Incompatible With One Another.

Ultimately, the most jurisdictionally relevant admission by Mr. Brown, when viewed in

light of Mr. Brown’s other admissions, is that R. Brown admittedly sold TIKI-trademarked

accused goods—even though if Mr. Brown’s declaration was 100 percent true, it is unclear how

R. Brown could have acquired them. Despite purportedly lacking any shared “offices, officers, or

other business connections” with NCI (ECF No. 22-1 at ¶ 21), and not “sell[ing] any Great

Grizzly products developed by NCI” (id. at ¶ 22), and having no “business relationship” with

NCI other than a sale by R. Brown of GREAT GRIZZLY-trademarked goods in 2019 to NCI (id.

at ¶ 24), R. Brown somehow came into possession of TIKI BAR-marked Roman candles that R.

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Brown agreed to relabel after receiving a cease-and-desist letter from Plaintiff’s counsel in

summer 2022. Exhibit 1.6 There are only two possible explanations for this phenomenon: (1)

Mr. Brown’s declaration reflects materially misleading omissions regarding the relationships

between R. Brown, NCI, and Great Grizzly; or (2) R. Brown actually designed and sold

infringing goods bearing Plaintiff’s TIKI trademark, but based on a potential misinterpretation of

the Complaint, Mr. Brown’s declaration is premised on the notion that Defendant’s only accused

goods are those bearing the mark TIKI BOMB, not TIKI BAR. If the correct explanation is (1),

then this Court may view Mr. Brown’s assertions in the light most favorable to Plaintiff and find

that there is an ongoing supply-chain relationship between R. Brown on the one hand and Great

Grizzly and/or NCI on the other that allows a finding of personal jurisdiction over R. Brown in

Indiana. If the correct explanation is (2), that is an unreasonable interpretation on R. Brown’s

part as discussed infra, and this Court may again view R. Brown’s acquisition of TIKI BAR-

marked goods as supportive of a finding of Indiana jurisdiction over R. Brown.

4. At A Minimum, Jurisdictional Discovery Is Warranted.

Plaintiff has already made of record all the facts in Plaintiff’s knowledge regarding the

propriety of personal jurisdiction over R. Brown, and has demonstrated that Mr. Brown’s

declaration raises more questions than it answers. Plaintiff believes that this Court is capable of

finding on this record that a prima facie case has been made for R. Brown to be subject to

personal jurisdiction in Indiana. Plaintiff can do no more without the ability to conduct

jurisdictional discovery. Plaintiff has clearly met the requirements for same as set out in the

Northern District of Indiana’s Andersen v. Sportmart, Inc., 179 F.R.D. 236 (N.D. Ind. 1998):

A plaintiff must make a threshold or prima facie showing with

some competent evidence demonstrating that personal jurisdiction
might exist over a defendant in order to be entitled to jurisdictional
discovery. [Citations.] For example, a plaintiff is entitled to
jurisdictional discovery if he or she can show that the factual
6
Defendants’ counsel Mr. Brooke refers to the goods in question as having been sold by R.
Brown under the mark TIKI BOMB. Mr. Brown identifies the goods in question as having been
sold by R. Brown under the mark TIKI BAR and denies any possession or sale by R. Brown of
goods with the mark TIKI BOMB. Plaintiff will not speculate regarding explanations for this
discrepancy.

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record is at least ambiguous or unclear on the jurisdiction issue.

[Citations.] This standard is quite low, but a plaintiff’s discovery
request will nevertheless be denied if it is only based upon “bare,”
“attenuated,” or “unsupported” assertions of personal jurisdiction,
or when a plaintiff’s claim appears to be “clearly frivolous.”

179 F.R.D. at 241–242. Mr. Brown’s declaration may be viewed by this Court as having created

ample ambiguity and unclarity regarding jurisdiction. On the one hand, R. Brown purportedly

only has offices, facilities, and personnel in Montana, does not sell fireworks into Indiana, and

rarely interacts with Great Grizzly. On the other, a critical reading of Mr. Brown’s carefully

qualified declaration creates significant ambiguity over R. Brown’s susceptibility to personal

jurisdiction in Indiana as the alter ego of Great Grizzly, and, at a minimum, depositions of Mr.

Brown regarding the Declaration and persons most knowledgeable for Great Grizzly and NCI

regarding corporate structure are necessary. Plaintiff thus respectfully requests that if this Court

has any doubt that, resolving all factual disputes in Plaintiff’s favor, a prima facie finding of

personal jurisdiction with respect to R. Brown is lacking, this Court grant jurisdictional

discovery to allow Plaintiff to propound jurisdictional interrogatories, requests for production,

and requests for admissions, and to take up to three depositions, including that of Mr. Brown,

prior to this Court’s adjudication of R. Brown’s Motion to Dismiss under FRCP 12(b)(2).
B. Defendants Are Clearly On Notice Of Defendant’s Infringing Use Of XL.

1. Plaintiff Pled All Necessary Facts To State A Plausible Claim, Which

Is All That Is Required.

Plaintiff has pled that Plaintiff owns the federally registered XL mark for use with

fireworks and that Defendants are also using the mark XL in connection with fireworks, thereby

establishing a plausible likelihood of confusion between Plaintiff’s and Defendants’ goods. This

is all that is necessary, even under Defendants’ cited case law, as discussed at length supra. The

Seventh Circuit has held even post-Iqbal that “the plaintiff must give enough details about the

subject-matter [sic] of the case to present a story that holds together.” Swanson v. Citibank, N.A.,

614 F.3d 400, 404 (7th Cir. 2010). Plaintiff has done so: Plaintiff owns a trademark for use with

fireworks, and Defendants are using that trademark in commerce, on fireworks, without

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Plaintiff’s permission, and thereby are creating a likelihood of confusion with respect to

Defendants’ fireworks’ source. It is unclear how this is not “a story that holds together.”

2. Defendants Cannot Deny Knowing Where And How Defendants Are

Using The XL Mark.

Defendants’ assertion that Defendants do not know how Defendants are using the XL

Mark on Defendants’ own products stretches credulity. Indeed, in footnote 4, Defendants make

clear that Defendants have used the XL Mark, albeit, as Defendants would have it, “generically

to indicate the size of certain fireworks products.” ECF No. 22 at 3, fn.4. Presumably Defendants

have the ability to review Defendants’ catalogs and inventory and determine which species of

goods are sold with packaging bearing the XL Mark. Those constitute the set of accused goods.

Defendants are in a far better position than Plaintiff to make a more specific determination.

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V. CONCLUSION

For the reasons set forth herein, Plaintiff respectfully requests that this Court deny the

Motion in the entirety, or, alternately, (a) grant jurisdictional discovery with respect to R. Brown

and/or (b) grant Plaintiff leave to file a first amended complaint to make more detailed

allegations regarding the XL Mark (and, if this Court believes it necessary, any other accused

goods), as this Court deems appropriate.

Respectfully submitted this 14th day of March, 2023.

GIBSON LEXBURY LLP

/s/ J.D. Lowry.

Steven A. Gibson, Esq. *
Nevada Bar No. 6656
sgibson@gibsonlexbury.com
Jodi Donetta Lowry, Esq. *
Nevada Bar No. 7798
jlowry@gibsonlexbury.com
3470 East Russell Road, Second Floor
Las Vegas, Nevada 89120
(702) 541-7888 Telephone
(702) 541-7899 Facsimile

* Admitted pro hac vice

BOSE MCKINNEY & EVANS LLP

Philip R. Zimmerly
Attorney No. 30217-06
111 Monument Circle, Suite 2700
Indianapolis, Indiana 46204
(317) 684-5000; (317) 684-5173 (Fax)
PZimmerly@boselaw.com

Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on March 14, 2023, a copy of the foregoing was filed electronically.

Notice of this filing will be sent to the following parties by operation of the Court’s electronic

filing system. Parties may access this filing through the Court’s CM/ECF system.

Meaghan K. Haller
Alex E. Gude
Jessica L. Meek
DENTONS BINGHAM GREENEBAUM LLP
2700 Market Tower, 10 West Market Street
Indianapolis, IN 46204-4900
meaghan.haller@dentons.com
alex.gude@dentons.com
Jessica.meek@dentons.com

John H. Brooke
Brooke & Struble, P.C.
112 East Gilbert Street
Muncie, Indiana 47305
jbrooke@bslawgroup.com

/s/ Alec J.H. Wade

An employee of Gibson Lexbury LLP.

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