Traton News, LLC v. Traton Corp.

914 F. Supp. 2d 901, 2012 WL 3822161, 2012 U.S. Dist. LEXIS 121947
CourtDistrict Court, S.D. Ohio
DecidedAugust 28, 2012
DocketCase No. 3:11-CV-435
StatusPublished
Cited by4 cases

This text of 914 F. Supp. 2d 901 (Traton News, LLC v. Traton Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Traton News, LLC v. Traton Corp., 914 F. Supp. 2d 901, 2012 WL 3822161, 2012 U.S. Dist. LEXIS 121947 (S.D. Ohio 2012).

Opinion

ENTRY AND ORDER: (1) GRANTING DEFENDANTS’ MOTIONS TO DISMISS (DOCS. 25, 26); (2) DENYING AS MOOT ALL OTHER PENDING MOTIONS (DOCS. 23, 27, 28, 36, 38); (3) DISMISSING WITHOUT PREJUDICE PLAINTIFF’S INITIAL AND AMENDED COMPLAINTS; AND (4) TERMINATING THIS CASE

MICHAEL J. NEWMAN, United States Magistrate Judge

This consent case involves claims under the Lanham Act, 15 U.S.C. § 1051, et seq., and breach of contract claims. It is now before the Court on motions to dismiss filed by Defendants Traton Corp. and Traton Homes, LLC (collectively the “Traton Defendants”) (doc. 25) and by Defendants Flammer Relations, Inc. and mRELEVANCE, LLC (collectively the ‘Wendor Defendants”) (doc. 26). Plaintiff has filed responsive memoranda (docs.32, 33); and Defendants have filed a reply memorandum (doc. 35). The Court heard oral arguments on these motions on May 21, 2012. See doc. 39.

I. Background

To understand this case, it is necessary for the Court to briefly review the parties’ backgrounds and the events leading up to this lawsuit. Traton Corp. was founded in 1971 by two brothers, William Poston and Millburn Poston. Declaration of William C. Poston (doc. 25-1) ¶2. The “Traton” name derives from the names of their children — Millburn’s daughter (Tracy) and William’s son (Clifton). Id. ¶4. Traton Corp. and its affiliated company, Traton Homes, LLC, are engaged in “various activities primarily devoted to residential community developmental and residential [904]*904home construction in and around Atlanta, Georgia.” Id. ¶ 3.

The Traton Defendants have operated a website at www.tratonhomes.com since before 2005. Declaration of Chris Poston (doc. 25-2) ¶ 3. Through their website, the Traton Defendants “have publicly promoted their community development and homebuilding enterprise, and ... specifically have kept realtors, potential customers, and residents of their communities apprised of relevant news and events concerning the operations of the Traton companies.” Id.

Plaintiff Traton News, LLC is an Ohio limited liability company (“Traton News (Ohio)”), which “is engaged in [the] business of publishing news stories and web-logs on the Internet.” Plaintiffs Amended Complaint (doc. 17) ¶ 2. Sam Han is the incorporator and sole member of Traton News, LLC (Ohio). See doc. 43-5. It is also relevant to note that Sam Han is an attorney who represented Christopher Moses (an individual who had purchased a house from Traton Homes in May 2004) in a 2005 trespass lawsuit against Traton Corp. and its employee in Georgia state court.1 See Moses v. Traton Corp., 286 Ga.App. 843, 650 S.E.2d 353 (2007).

A. Plaintiffs Website (www.traton.com)

In Spring 2006, the Traton Defendants became aware of a website, www.traton. com, operated anonymously but using the name “Traton News.” Doc. 25-2 ¶ 13. This website contains negative “news articles” and information about the Traton Defendants.2 The following headlines demonstrate the type of negative articles published there: “Home Buyers Dissatisfied with Traton Homes’ Failure to Resolve Title Issues”; “Ridiculous Warranty Issue Plagues Traton Homes Customer”; “Traton Homes Disrupts Yet Another Home Owner’s Life”; “Traton Suspected of Felony”; “Procedures at Traton Homes [M]ay Deprive Real Estate Agents of Commission”; “Traton Homes Turns Up a Big Zero at the 2008 OBIE Awards”; “Traton Homes Ratings Sub-Standard for Three Consecutive Years”; “Traton Sucks and Taubman Sucks”; and “Traton Homes Covenants Worthless to Protect Homeowners.” 3 Doc. 2-5. This is only a sample of the many negative articles. See id.

[905]*905B. The Evolution of Traton News, LLC

In March 2006, Christopher Moses (the plaintiff in the Georgia lawsuit against Traton Corp.) created a Georgia limited liability company named “Traton News, LLC” (“Traton News (Georgia)”). Doc. 43-3 at PagelD 1145. On April 20, 2006, Traton News (Georgia) submitted an application to the United States Patent and Trademark Office (“USPTO”) for registration of the trademark “TRATON” with respect to “news reporting services.” See doc. 43-2 at PagelD 1139-44. Traton News (Georgia) claimed it owned the TRA-TON mark, and first used it in connection with news reporting services on March 15, 2006. Id. Traton News (Georgia) was granted federal trademark registration for the TRATON mark with respect to “news reporting services” on February 13, 2007. Id. at PagelD 1126. Moses voluntarily dissolved Traton News (Georgia) on January 15, 2008. See doc. 43-3 at PagelD 1152.

Moses subsequently moved from Georgia to Virginia. See doc. 25-3 at PagelD 704. On September 10, 2007, Moses created a new Virginia limited liability company with the same name: Traton News, LLC (“Traton News (Virginia)”). See doc. 43-4 at PagelD 1154-59. This entity was later cancelled in December 2008 due to its failure to pay the required fees. See id.

In 2008, Sam Han moved to Ohio for a teaching position at the University of Dayton School of Law. See Han v. Univ. of Dayton, Nos. 2012 CV 03406, 2011 CV 08966 (C.P.Ct. Montgomery Cnty., Ohio); doc. 43-8 at PagelD 1187-1213.4 On April 5, 2011, Sam Han created Traton News (Ohio) — the Plaintiff in this case. Doc. 45-3 at PagelD 1160.

C. Flammer Relations and mRELEVANCE, LLC

At the end of 2007 and beginning of 2008, Traton Homes consulted with Defendant Flammer Relations, Inc., “an Atlanta-based public relations and social media firm focused on obtaining positive media coverage for clients throughout the Southeast United States,” regarding the negative information being published on www. traton.com. Declaration of Carol Flammer (doc. 26-1) ¶¶ 3-4. Flammer Relations began periodically viewing the website in order to serve its client, Traton Homes. Id. ¶¶ 4-5.

Flammer Relations is a part-owner of a separate and distinct company, Defendant mRELEVANCE, LLC. Id. ¶9. In August 2010, Traton Homes entered into a contract with mRELEVANCE, LLC “to provide certain specific public relations services to assist in the creation and maintenance of an internet blog site that would publicize positive news and events about Traton Homes, provide search engine optimization services for the blog posts, and provide related social media marketing services.” Id. ¶ 8. The contract did not require mRELEVANCE to visit Plaintiffs website. Id. ¶ 9.

II. Allegations in Plaintiffs Amended Complaint

According to Plaintiffs Amended Complaint (doc. 17), the following facts give rise to this lawsuit. Plaintiff claims it is the owner of the mark “TRATON” with respect to “news reporting services”- — a mark that was registered with the USPTO in 2006. Doc. 17 ¶¶ 14-17. Further, Plaintiff claims it operates a website (www. traton.com) where it posts various news articles. Id. ¶ 19. According to Plaintiff, [906]*906Dale Bercher, an officer of Traton Corp., accessed Plaintiffs website at least 175 times from June 9, 2008 through August 24, 2009, thereby binding the Traton Defendants to the website’s terms and conditions. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
914 F. Supp. 2d 901, 2012 WL 3822161, 2012 U.S. Dist. LEXIS 121947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/traton-news-llc-v-traton-corp-ohsd-2012.