Case 1:23-cv-00037-MPB-MG Document 44 Filed 10/06/23 Page 1 of 16 PageID #: 245

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

1.4G HOLDINGS, LLC, )

)
Plaintiff, )
)
v. ) No. 1:23-cv-00037-MPB-MG
)
NORTH CENTRAL INDUSTRIES, INC., et al., )
)
Defendants. )

ORDER ON R. BROWN, INC.'S MOTION TO DISMISS FOR LACK OF PERSONAL

JURISDICTION AND ALL DEFENDANTS' PARTIAL MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM

Plaintiff, 1.4g Holdings, LLC, ("1.4g") sues three Defendants: North Central Industries,

Inc. ("NCI"), Great Grizzly, Inc., and R. Brown, Inc., alleging Defendants infringed upon and

misappropriated Plaintiff's federally registered "Tiki Mark," "Ghost Mark," "XL Mark," and

Plaintiff's "Ghost Design Mark," and "Tiki Trade Dress." Now pending before the Court is R.

Brown's Motion to Dismiss for lack of personal jurisdiction under Federal Rule of Civil

Procedure 12(b)(2) and, filed within the same motion, all Defendants' partial Motion to Dismiss

1.4g's alleged infringement of the "XL Mark" for failure to state a claim under Rule 12(b)(6).

Specifically, Defendants seek dismissal of Count III and dismissal of Count VI to the extent

Count VI encompasses the XL Mark. For the reasons detailed below, the Court GRANTS R.

Brown's Motion to Dismiss for lack of personal jurisdiction and DENIES Defendants partial

Motion to Dismiss Count III and Count VI for failure to state a claim.

I. Background

For purposes of the motions, the Court accepts as true the factual allegations enumerated

in 1.4g's Complaint. When necessary, the Court also takes as true those facts contained in
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Defendant's declaration that remain unrefuted by 1.4g. GCIU-Emp. Ret. Fund v. Goldfarb Corp.,

565 F.3d 1018, 1020 n.1 (7th Cir. 2009).

Plaintiff 1.4g is a Nevada limited-liability company with its principal place of business in

Nevada. (Docket No. 1, Compl. at ECF p. 1). 1.4g owns three federally registered marks for use

with fireworks: (1) TIKI (the "Tiki Mark"); (2) GHOST (the "Ghost Mark"); and (3) XL (the

"XL Mark"). (Id. at ECF p. 3). 1.4g also owns a trade dress "that includes, for use with

fireworks, on a brightly colored background, a cartoon image of a Polynesian 'tiki god',

proximate to the word 'TIKI'" with distinct facial features ("Tiki Trade Dress"). (Id. at ECF p.

4–5). 1.4g's has used its Tiki Trade Dress in commerce since at least 2019. (Id. at ECF p. 4).

Defendant Great Grizzly, Inc. is an Indiana corporation with its principal place of

business in Montana. (Id. at ECF p. 1). Defendant North Central Industries, Inc. ("NCI") is an

Indiana corporation with its principal place of business in Indiana. (Id.). Defendant R. Brown,

Inc. is a Montana corporation with its principal place of business in Montana. (Id. at ECF p. 2).

Both R. Brown and NCI are wholesalers of fireworks and licensees of

Defendant Great Grizzly's fireworks brand. (Docket No. 22, Defs.' Br. at ECF pp. 4–5). 1.4g

alleges that R. Brown regularly contracts with both NCI and Great Grizzly for the use of the

misappropriated intellectual property at issue in this case. (Compl. at ECF p. 2).

R. Brown's officers include Mark Brown, President, Cory Brown, Secretary, and

Christian Brown, Treasurer. (Docket No. 22-1, Brown Dec. at ECF p. 1). Each officer is also a

shareholder of R. Brown and lives and works in Montana. (Id.). Mark Brown also serves as

treasurer of Great Grizzly. (Compl. at ECF p. 2).

R. Brown has never been registered to do business in Indiana. (Brown Dec. at ECF p. 1).

It does not have offices in Indiana and has no employees who live or work in Indiana. (Id. at

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ECF p. 2). R. Brown's website is located at the address, <greatgrizzly.net>, which depicts the

Great Grizzly logo on the homepage. (Compl., at ECF p. 3). R. Brown's website states that it is

an "exclusive dealer of Great Grizzly products." (Id.). The contact option for users on R. Brown's

website is titled "Contact Great Grizzly." (Id.). The listed phone number on the R. Brown's

website is a Montana phone number and the listed address is a Montana address (R. Brown's

principal office address). (Brown Dec. at ECF p. 2).

II. Legal Standard

A. Rule 12(b)(2)

Federal Rule of Civil Procedure 12(b)(2) calls for dismissal of a claim where personal

jurisdiction is lacking. When deciding a Rule 12(b)(2) motion, the court accepts all factual

allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff if

they weigh on personal jurisdiction. Int'l Medical Grp., Inc. v. Am. Arbitration Ass'n, 149 F.

Supp. 2d 615, 623 (S.D. Ind. 2001). While the complaint does not need to include factual

allegations concerning personal jurisdiction, if the defendant moves to dismiss under Rule

12(b)(2), the plaintiff "bears the burden of demonstrating the existence of jurisdiction." Purdue

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

When the court determines personal jurisdiction based only on reference to submissions

of written materials, the plaintiff simply needs to make a prima facie case of personal

jurisdiction. GCIU-Employer Ret. Fund, 565 F.3d at 1023. In evaluating whether a plaintiff has

satisfied the prima facie standard, the district court will resolve all disputes concerning relevant

facts in the plaintiff's favor. Purdue Research, 338 F.3d at 782 (citing Nelson by Carson v. Park

Indus., Inc., 717 F.2d 1120, 1123 (7th Cir. 1983)). If a defendant presents evidence in opposition

to the court's jurisdiction, "the plaintiff must go beyond the pleadings and submit affirmative

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evidence supporting the exercise of jurisdiction." Purdue Research, 338 F.3d at 783. Such

affirmative evidence may include affidavits unless the affidavits merely contain conclusions that

the court lacks personal jurisdiction over the defendant. Id. at 783 n. 13 (citing Meier v. Sun Int'l

Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)).

B. Rule 12(b)(6)

Federal Rule of Civil Procedure Rube 12(b)(6) allows a defendant to move to dismiss a

complaint that has failed to "state a claim upon which relief can be granted." Fed. R. Civ. P.

12(b)(6). "The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to

decide the merits." Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990).

A plaintiff's complaint must contain "a short and plain statement showing that the pleader

is entitled to relief." Fed. R. Civ. P. 8(a)(2). To satisfy this standard, a plaintiff need not include

"detailed factual allegations," rather, a plaintiff must "state a claim to relief that is plausible on its

face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 570 (2007). A claim is facially plausible if

it "pleads factual content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). When considering a motion to dismiss for failure to state a claim,

courts "take all the factual allegations in the complaint as true," Id. at 678, and draw all

reasonable inferences in the plaintiff's favor. Roberts v. City of Chicago, 817 F.3d 561, 564 (7th

Cir. 2016). Courts need not, however, accept the truth of legal conclusions, and "[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice." Iqbal, 556 U.S. at 678. That said, "the bar to survive a motion to dismiss is not high."

Gociman v. Loyola Univ. of Chicago, 41 F.4th 873, 881 (7th Cir. 2022) (citing Bonte v. U.S.

Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010)). "[A] plaintiff 'receives the benefit of

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imagination, so long as the hypotheses are consistent with the complaint.'" Chapman v. Yellow

Cab Coop., 875 F.3d 846, 848 (7th Cir. 2017) (quoting Twombly, 550 U.S. at 563).

III. Discussion

A. R. Brown and Personal Jurisdiction

In cases involving both federal claims under the Lanham Act and state law claims, courts

"look to the law of the forum for the governing rule." Advanced Tactical Ordnance Sys., LLC v.

Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. 2014), as corrected (May 12, 2014)

(citations omitted). Under Indiana's long-arm statute, Indiana state courts may exercise personal

jurisdiction on several prescribed bases, as well as "on any basis not inconsistent with the

Constitutions of this state or the United States." Ind. R. Trial P. 4.4(A); see also Advanced

Tactical, 751 F.3d at 800 (quoting LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 967 (Ind. 2006)

("The Supreme Court of Indiana has held that Indiana's long-arm provision 'reduce[s] analysis of

personal jurisdiction to the issue of whether the exercise of personal jurisdiction is consistent

with the Federal Due Process Clause.'")).

A non-resident defendant "generally must have 'certain minimum contacts . . . such that

the maintenance of the suit does not offend "traditional notions of fair play and substantial

justice."'" Walden v. Fiore, 571 U.S. 277, 283 (2014) (quoting Int'l Shoe Co. v. State of Wash.,

Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945) (quoting Milliken v.

Meyer, 311 U.S. 457, 463 (1940)).

Personal jurisdiction can be either specific or general. A defendant is subject to general

jurisdiction "when their affiliations with the State are so 'continuous and systematic' as to render

them essentially at home in the forum State.'" BNSF Ry. Co. v. Tyrrell, 581 U.S. 402, 413 (2017)

(quoting Daimler AG v. Bauman, 571 U.S. 117, 127 (2014)). In contrast, a defendant is subject

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to specific jurisdiction when the "controversy is related to or 'arises out of' a defendant's contacts

with the forum . . . ." Helicopteros, 466 U.S. 408, 414 (1984) (quoting Shaffer v. Heitner, 433

U.S. 186, 204 (1977)). Here, the Court analyzes only general jurisdiction because 1.4g does not

argue that specific jurisdiction exists over R. Brown.

R. Brown asserts that general jurisdiction cannot be fairly asserted against it because

neither its association with Great Grizzly nor its association with NCI create contacts that "come

close to establishing the high bar of contacts so extensive to be tantamount to R. Brown being

constructively present in Indiana." (Defs.' Br. at ECF pp. 9, 11 (cleaned up)). 1.4g counters that,

at minimum, a prima facie case has been established for personal jurisdiction over R. Brown

based on its "intercompany enmeshment" with Great Grizzly. (Docket No. 24 at ECF pp. 9, 15).

The standard for general personal jurisdiction is a "demanding standard" that "requires

the defendant to have such extensive contacts with the state that it can be treated as present in the

state for essentially all purposes." uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 425–26 (7th

Cir. 2010). Thus, R. Brown's contacts with Indiana "must be so extensive to be tantamount" to R.

Brown "being constructively present" in Indiana such that "it would be fundamentally fair to

require it to answer in an Indiana court in any litigation arising out of any transaction or

occurrence taking place anywhere in the world." Purdue Research, 338 F.3d at 787.

There are rare situations in which a court can exercise general jurisdiction in the absence

of incorporation or principal place of business in the forum state. Kipp v. Ski Enter. Corp. of

Wisconsin, 783 F.3d 695, 698 (7th Cir. 2015); see also Daimler AG, 571 U.S. at 119 (the "all-

purpose forums for general jurisdiction are a corporation's place of incorporation and principal

place of business). A defendant's contacts with the forum state must be "substantial, continuous,

extensive and systematic . . ." KnowledgeAZ, Inc. v. Jim Walter Res., Inc., 452 F. Supp. 2d 882,

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893 (S.D. Ind. 2006) (citing Anthem Ins. Companies, Inc. v. Tenet Healthcare Corp., 730 N.E.2d

1227, 1235 (Ind. 2000)). Generally, several factors are considered when assessing whether such

substantial contacts exist. These factors include:

(1) whether and to what extent the defendant conducts business in the forum state;

(2) whether the defendant maintains an office or employees within the forum state;

(3) whether the defendant sends agents into the forum state to conduct business;

(4) whether the defendant advertises or solicits business in the forum state; and

(5) whether the defendant has designated an agent for service of process in the
forum state.

McManaway v. KBR, Inc., 695 F. Supp. 2d 883, 894 (S.D. Ind. 2010).

The following factors are not in dispute. R. Brown is not, and has never been, registered

to do business in Indiana. (Brown Dec. at ECF p. 1). R. Brown is in the business of wholesaling

fireworks, and R. Brown has never made any wholesale (or retail) sales to Indiana. (Id. at ECF

pp. 2–4). R. Brown has no offices in Indiana and has no employees who live or work in Indiana.

(Id. at ECF p. 2). R. Brown does not send solicitations to Indiana or target Indiana with its

advertisements. (Defs.' Br. at ECF p. 10). R. Brown does not have a registered agent for service

of process in Indiana. (Id.). The parties dispute only one of the general jurisdiction factors—

whether R. Brown has sent its agents to Indiana. In support of its brief, R. Brown submitted a

declaration from its president, Mr. Brown. Mr. Brown states that R. Brown has never sent an

employee, including himself, to Indiana for business purposes. (Brown Dec. at ECF p. 3). 1.4g

counters that this assertion is "not credible" and requests that the Court discredit Mr. Brown's

statement. (Docket No. 24, Pl.'s Br. at ECF p. 14).

A negative credibility finding regarding Mr. Brown's declaration is unwarranted at the

motion to dismiss stage. LaPorte Sav. Bank v. Schmidt, No. 2:10-CV-491, 2011 WL 2516536 *3

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(N.D. Ind. June 23, 2011). Much like an affidavit, it is "not easy to make a credibility

determination from the face" of a declaration. Sapperstein v. Hager, 188 F.3d 852, 856 (7th Cir.

1999). Further, Mr. Brown's declaration is not so facially incredible as to be discredited absent

facts to the contrary. Contra be2 LLC v. Ivanov, 642 F.3d 555, 557–58 (7th Cir. 2011).

R. Brown has submitted affirmative evidence in opposition to the Court's jurisdiction and

1.4g has failed to go "beyond the pleadings and submit affirmative evidence supporting the

exercise of jurisdiction." Purdue Research, 338 F.3d at 783. The Court is left with 1.4g's

conclusory allegations regarding the veracity of Mr. Brown's declaration statements. While the

Court is instructed to draw reasonable inferences in 1.4g's favor—it is not bound to adopt 1.4g's

notions that are unsupported by evidence. The uncontroverted evidence before the Court is that

R. Brown has never sent any employee, including its president, to Indiana for business purposes.

Thus, none of the general jurisdiction factors are present.

Notwithstanding the absence of general jurisdiction factors, 1.4g puts forth two

arguments to establish a prima facie case for personal jurisdiction—(1) that R. Brown's status as

a licensee of Great Grizzly supports personal jurisdiction, and (2) that Great Grizzly is acting

effectively as R. Brown's alter ego, without observing corporate formalities, and "Great Grizzly's

connection to Indiana and general jurisdiction therein can be imputed to R. Brown." (Pl.'s Br. at

ECF p. 10). R. Brown replies that its status as a licensee alone does not support personal

jurisdiction and that 1.4g's alter-ego theory is both "meritless and "speculative." (Docket No. 25,

Defs.' Reply at ECF p. 4).

1. Licensee Status

"The mere existence of a licensor-licensee relationship, without more, is 'insufficient to

impute the contacts of a licensee on the licensor for the purpose of establishing personal

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jurisdiction.'" Eco Pro Painting, LLC v. Sherwin–Williams Co., 807 F. Supp. 2d 732, 736–37

(N.D. Ill. 2011) (quoting Sinclair v. StudioCanal, S.A., 709 F. Supp. 2d 496, 510 n.8 (E.D. La.

2010)). Personal jurisdiction does not exist over a licensor by virtue of its status unless it

"exercise[s] control over the licensee's sales activities" or "has dealings with the licensee 'beyond

the receipt of royalty income.'" Id. at 737.

1.4g conflates its licensee status argument with its alter ego argument. (Docket No. 24 at

ECF pp. 9–10). Additionally, Plaintiff has not plead facts, nor provided affirmative evidence, to

demonstrate that R. Brown has exercised control over Great Grizzly's sales activities or that the

two corporations have frequent dealings "beyond the receipt of royalty income." Id. (citing

Eragen Biosciences, Inc. v. Nucleic Acids Licensing, LLC, 447 F. Supp. 2d 930, 938 (W.D. Wis.

2006)). Thus, the mere existence of the licensor-licensee relationship is insufficient to impute

Great Grizzly's contacts to R. Brown for personal jurisdiction purposes. Eco Pro Painting, 807 F.

Supp. 2d at 736–37.

2. "Alter Ego"

The Court looks to Indiana law for the governing rules on personal jurisdiction and will

apply the factors Indiana courts consider when determining whether Great Grizzly's contacts

should be imputed to R. Brown based on the corporate alter ego theory. Advanced Tactical

Ordnance Sys., 751 F.3d at 800; Best Chair Inc. v. Factory Direct Wholesale, LLC, 121 F. Supp.

3d 828, 835 (S.D. Ind. 2015). "As a general rule, Indiana courts are reluctant to disregard

corporate identity and do so only to protect third parties from fraud or injustice when transacting

business with a corporate entity." Longhi v. Mazzoni, 914 N.E.2d 834, 838–39 (Ind. Ct. App.

2009) (citations omitted). However, a court may pierce the corporate veil and assert personal

jurisdiction over individuals who otherwise would not be subject to the court's jurisdiction where

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corporate form is ignored. IDS Life Ins. Co. v. Sun America Life Ins. Co., 136 F.3d 537, 540 (7th

Cir. 1998); see also In re Teknek, L.L.C., 354 B.R. 181, 196 n.5 (Bankr. N.D. Ill. 2006) ("The

exception permits the individual corporate defendant to be roped in with personal jurisdiction if

the plaintiff makes prima facie showing . . . that the corporate form is a shell or sham rather than

a real, separate entity."). "When a corporation is functioning as an alter ego or a mere

instrumentality of . . . another corporation, it may be appropriate to disregard the corporate form

and pierce the veil." Reed v. Reid, 980 N.E.2d 277, 301 (Ind. 2012).

When analyzing whether to pierce the corporate veil, Indiana courts consider the

foregoing factors:

(1) undercapitalization; (2) absence of corporate records; (3) fraudulent

representation by corporation shareholders or directors; (4) use of the corporation
to promote fraud, injustice or illegal activities; (5) payment by the corporation of
individual obligations; (6) commingling of assets and affairs; (7) failure to observe
required corporate formalities; or (8) other shareholder acts or conduct ignoring,
controlling, or manipulating the corporate form.

Aronson v. Price, 644 N.E.2d 864, 867 (Ind. 1994).

A second set of "additional factors" are also considered when "a plaintiff seeks to pierce

the corporate veil in order to hold one corporation liable for another closely related corporation's

debt." Reed, 980 N.E.2d at 302 (quoting Oliver v. Pinnacle Homes, Inc., 769 N.E.2d 1188, 1192

(Ind. Ct. App. 2002)); see also Greater Hammond Cmty. Servs., Inc. v. Mutka, 735 N.E.2d 780,

785 (Ind. 2000) ("[T]he corporate alter ego doctrine is a device by which a plaintiff tries to show

that two corporations are so closely connected that the plaintiff should be able to sue one for the

actions of the other."). Those factors include whether "(1) similar corporate names were used; (2)

the corporations shared common principal corporate officers, directors, and employees; (3) the

business purposes of the [organizations] were similar; and (4) the corporations were located in

the same offices and used the same telephone numbers and business cards." Reed, 980 N.E.2d at

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302.

Here, 1.4g argues that Great Grizzly is acting as R. Brown's alter ego without observing

corporate formalities and thus, "Great Grizzly's connection to Indiana and general jurisdiction

therein may be imputed to R. Brown." (Pl.'s Br. at ECF p. 10). To support its contention that

corporate formalities have been ignored, 1.4g's makes several arguments.

First, 1.4g claims that Mr. Brown's statement that R. Brown and Great Grizzly have had

"very little interactions" is credible only if Great Grizzly and R. Brown are "so enmeshed" that

the Court can view them as "one and the same for jurisdictional purposes." (Pl.'s Br. at ECF pp.

10–11). 1.4g then requests that the Court resolve the "factual discrepancy" in 1.4g's favor. (Id. at

ECF p. 12). R. Brown has submitted evidence, Mr. Brown's declaration, in opposition to the

Court's jurisdiction. (Brown Dec.). Thus, 1.4g was required to go "beyond the pleadings and

submit affirmative evidence supporting the exercise of jurisdiction," but failed to do so. Purdue

Research, 338 F.3d at 783. Notwithstanding 1.4g's failure to submit affirmative evidence, 1.4g

has provided only conclusory statements regarding the frequency of R. Brown and Great

Grizzly's communication. While the Court is instructed to resolve factual disputes in 1.4g's favor,

mere "[c]onclusory allegations unsupported by any factual assertions" are insufficient to

"withstand a motion to dismiss." Cushing v. City of Chicago, 3 F.3d 1156, 1160 n.5 (7th

Cir.1993); see also Search Force, Inc. v. Dataforce Int'l, Inc., 112 F. Supp. 2d 771, 774 (S.D.

Ind. 2000) (applying the Cushing standard to a Rule 12(b)(2) motion). The Court will not

discredit Mr. Brown's statements or assume there is a "jurisdiction-conferring level of contact"

between R. Brown and Great Grizzly. (Pl.'s Br. at ECF p. 10).

Next, 1.4g states that R. Brown's control of the <greatgrizzly.net> website supports a

finding of corporate enmeshment and R. Brown's status as an alter ego of Great Grizzly. (Pl.'s

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Br. at ECF p. 12). 1.4g highlights, and the Court acknowledges, that there is corporate overlap

between Great Grizzly and R. Brown. For example, R. Brown's website bears the Great Grizzly

logo and domain name. These facts are similar to Collazo, where the plaintiff raised an alter ego

argument based on a parent corporation and its subsidiaries using a common website and logo.

823 F. Supp. 2d 865, 871 (N.D. Ind. 2011). The parent and subsidiaries in Collazo also shared

contact and customer support information. Id. Here, R. Brown and Great Grizzly do not share

contact and customer service information. Rather, the <greatgrizzly.net> website lists both a

Montana phone number and a Montana principal office address. (Defs.' Br. at ECF pp. 4, 12).

Despite the corporate overlap present in Collazo, the court reasoned that the website contacts

were insufficient to establish an alter ego relationship. 823 F. Supp. 2d at 871. Similarly, while

R. Brown's website displays its association with Great Grizzly, 1.4g provides no facts to

demonstrate the "unusually high degree of control" that is inherent in an alter ego relationship.

Id. Mr. Brown's declaration, the only affirmative evidence submitted, states that Great Grizzly

had no role in creating or maintaining its website. (Id. at ECF p. 4). Thus, while the Court will

consider R. Brown's control of a website with Great Grizzly's logo and domain name for

purposes of analyzing 1.4g's alter ego argument, Collazo suggests that these contacts are not

dispositive.

The fact that Collazo dealt with two subsidiaries, instead of a licensor and licensee, does

not change the analysis. Seventh Circuit precedent is clear—personal jurisdiction cannot be

established "on corporate affiliation or stock ownership alone where corporate formalities are

substantially observed . . . ." Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express

World Corp., 230 F.3d 934, 943 (7th Cir. 2000). This is true in the context of both a parent-

subsidiary and licensee-licensor relationship. Eco Pro Painting, 807 F. Supp. 2d at 736–37 ("The

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mere existence of a licensor-licensee relationship, without more, is '"insufficient to impute the

contacts of a licensee on the licensor for the purpose of establishing personal jurisdiction.'"

(citing Sinclair v. StudioCanal, S.A., 709 F. Supp. 2d 496, 510 n.8 (E.D. La. 2010)).

1.4g also asserts that Mr. Brown's role as treasurer of Great Grizzly supports its alter ego

theory. (Pl.'s Br. at ECF p. 13). Mr. Brown's declaration states that he does "not actually do

work" as the Treasurer of Great Grizzly. (Brown Dec. at 3). According to 1.4g, this statement is

not "susceptible to a sensible factual resolution consistent with the existence of two discrete

entities respecting corporate formalities." (Pl.'s Br. at ECF p. 13). The argument, however, raises

mere suspicion concerning Brown's statement, rather than providing contrary facts supported by

affirmative evidence.

Mr. Brown's declaration notwithstanding, sharing principal corporate officers is a factor

enumerated in Reed for corporate alter ego claims. Reed, 980 N.E.2d at 302 (quoting Oliver v.

Pinnacle Homes, Inc., 769 N.E.2d 1188, 1192 (Ind. Ct. App. 2002)). There is no dispute that Mr.

Brown serves as R. Brown's President and Great Grizzly's Treasurer simultaneously. Cf. Reed,

980 N.E.2d at 302–03 (citing evidence of a common president in concluding that genuine issues

of material fact defeated summary judgment on a corporate veil piercing claim). The fact alone,

however, is not dispositive. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 364 (7th Cir.

2016) (holding that the corporate veil should not be pierced despite the corporate overlap

between two companies that, among other things, shared multiple directors and employees).

Additionally, 1.4g asserts that R. Brown received the allegedly infringing products

through its supply-chain relationship with NCI/Great Grizzly, or alternatively, that R. Brown

designed and sold the infringing goods itself. (Docket No. 24 at ECF pp. 14–15). According to

1.4g, either theory supports a finding of jurisdiction over R. Brown. (Docket No. 24 at ECF p.

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14). Importantly, R. Brown merely doing business with NCI, an Indiana corporation, is

"insufficient to confer general personal jurisdiction." Annie Oakley Enterprises, 703 F. Supp. 2d

881, 890 (N.D. Ind. 2010). While NCI and R. Brown's business relationship is relevant, it must

be accompanied by other general personal jurisdiction factors to confer general personal

jurisdiction. Id. As stated in subsection III(A)(1), the Court has found that no general personal

jurisdiction factors are present here.

Alternatively, the fact that R. Brown allegedly designed and sold products including the

word "Tiki" in the western part of the United States is material for liability purposes but

immaterial for personal jurisdiction purposes. Petroleum Inst. v. Bullseye Auto. Prod. Inc., No.

1:13-CV-01112, 2014 WL 1356077 at *2 (S.D. Ind. Apr. 7, 2014) ("[J]urisdiction and liability

are two separate inquiries.") 1.4g provided no facts to prove that R. Brown's sale of TIKI-marked

products bore any connection to Indiana. Thus, R. Brown cannot be subject to personal

jurisdiction in Indiana even if it did design and sell the infringing TIKI BAR-marked goods in

the western part of the United States.

In sum, the record does not demonstrate that R. Brown's contacts are so "'continuous and

systematic' that it should reasonably anticipate being hauled into" this Court. LinkAmerica, 857

N.E.2d at 967. Furthermore, there is insufficient evidence that Great Grizzly is acting as R.

Brown's alter ego. Because none of the general personal jurisdiction factors are present and the

corporate alter ego theory does not apply, 1.4g has not made a prima facie showing of general

jurisdiction. 1

1
1.4g requests that this Court grant jurisdictional discovery. However, "[a]t a minimum,
the plaintiff must establish a colorable or prima facie showing of personal jurisdiction before
discovery should be permitted." Cent. States, Se. & Sw. Areas Pension Fund, 230 F.3d at 946.
For the reasons stated above, a prima facie showing of personal jurisdiction has not been
established, and 1.4g's request for jurisdictional discovery is denied.

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B. Sufficiency of Claim

"[A] plaintiff is not required to include 'detailed factual allegations'" to comply with Rule

8 but must instead plead facts within its complaint "that are sufficient, when accepted as true, to

'state a claim to relief that is plausible on its face.'" Alexander v. United States, 721 F.3d 418,

422 (7th Cir. 2013) (quoting Twombly, 550 U.S. at 570). To survive dismissal, 1.4g need only

provide "some specific facts to support the legal claims asserted in the complaint." Bilek v. Fed.

Ins. Co., 8 F.4th 581, 586 (7th Cir. 2021) (internal quotation marks omitted) (emphasis added).

This is not a hard standard to satisfy. 1.4g has identified its registered XL trademark, has stated

that it owns the XL mark for use with fireworks, that Defendants are using the XL mark in

commerce and in connection with firework sales, that 1.4g has not given Defendants permission

to use the mark, and that there is a likelihood of confusion with respect to the source of the

Defendants' fireworks. (Compl. at ECF pp. 3, 5, 9–10).

Defendants argue that 1.4g has not stated a cognizable claim because it failed to identify

the fireworks product(s) used by Defendants that allegedly infringe the XL mark as well as when

and where Defendants allegedly used the infringing products. (Defs.' Br. at ECF p. 15).

However, "unearthing th[ese] specifics is a matter for discovery, and to require such specifics at

this stage would exceed the bounds of notice pleading requirements." Coexist, LLP v.

Cafepress.com, No. 1:05-CV-0673, 2006 WL 120183, at *3 (S.D. Ind. Jan. 17, 2006). Here, 1.4g

alleges that Defendants used the XL Mark in commerce without Plaintiff’s consent and that such

use is likely to confuse the public. (Compl. at ECF p. 9). Moreover, 1.4g pleads that Defendants

had knowledge that their use constituted infringement. (Id.). As a result, 1.4g asserts it suffered

damages to its reputation and good will. (Id. at ECF p. 10). These allegations are sufficient to

place Defendants on notice of 1.4g's claims regarding the XL Mark. Accordingly, Defendants'

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Motion to Dismiss for failure to state a claim is denied. Am. Nurses' Ass'n v. State of Ill., 783

F.2d 716, 727 (7th Cir. 1986) ("[A] complaint does not fail to state a claim merely because it

does not set forth a complete and convincing picture of the alleged wrongdoing.").

IV. Conclusion

For the reasons detailed above, Defendants' Motion to Dismiss (Docket No. 21) is

GRANTED in part and DENIED in part. It is GRANTED without prejudice with respect to

Defendant R. Brown's Motion to Dismiss for lack of personal jurisdiction. It is DENIED with

respect to Defendants' collective partial Motion to Dismiss for failure to state a claim.

SO ORDERED.

Dated: October 6, 2023

Served electronically on all ECF-registered counsel of record.

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