Curry v. Revolution Laboratories, LLC, 021020 FED7, 17-2900

Docket Nº:17-2900
Opinion Judge:Ripple, Circuit Judge.
Party Name:Charles Curry, doing business as Get Diesel Nutrition, Plaintiff-Appellant, v. Revolution Laboratories, LLC, et al., Defendants-Appellees.
Judge Panel:Before Ripple, Rovner, and Barrett, Circuit Judges.
Case Date:February 10, 2020
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Charles Curry, doing business as Get Diesel Nutrition, Plaintiff-Appellant,

v.

Revolution Laboratories, LLC, et al., Defendants-Appellees.

No. 17-2900

United States Court of Appeals, Seventh Circuit

February 10, 2020

Argued September 11, 2019

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cv-02283 - Matthew F. Kennelly, Judge.

Before Ripple, Rovner, and Barrett, Circuit Judges.

Ripple, Circuit Judge.

Charles Curry brought this action pro se1 in the district court, alleging that Revolution Labora- tories, LLC ("Revolution"), Rev Labs Management, Inc. ("Management"), and Joshua and Barry Nussbaum (collectively the "defendants") had infringed and diluted his trademark, 2 violated the Illinois Consumer Fraud and Deceptive Practices Act, violated the Illinois Uniform Deceptive Trade Practices Act, engaged in false advertising and cybersquatting, and filed a fraudulent trademark application.3

Revolution is a limited liability company that is in the business of selling sports nutritional supplements and apparel. Management is a corporation that was formed for the sole purpose of being the manager of Revolution. According to Mr. Curry, Joshua and Barry Nussbaum co-founded Revolution and Management. Joshua Nussbaum is the President of Management and Revolution; Barry Nussbaum is the Director of Management and the Chief Executive Officer of Revolution.

The defendants moved to dismiss Mr. Curry's suit for lack of personal jurisdiction. The district court dismissed the action, holding that it lacked personal jurisdiction.4 Mr. Curry timely appealed that decision to this court. 5 We respectfully disagree with the district court's ruling and hold that the district court did have personal jurisdiction over Revolution. Accordingly, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

I.

BACKGROUND

A. Facts

Charles Curry is the founder and Chief Executive Officer ("CEO") of a company named "Get Diesel Nutrition" that sells dietary supplements to fitness enthusiasts and athletes. Mr. Curry contends that the "essence" of his brand is "Diesel."6 Indeed, he has adopted the alter ego "Chuck Diesel/' and his company name, website address, and the product at issue, Diesel Test, all contain the word "Diesel."7 He has paid for advertising for his products, including Diesel Test, in nationally distributed fitness magazines since 2002. He first manufactured Diesel Test in March 2005 and has advertised the product since June 2005.8 Diesel Test received awards from Planet Muscle magazine in 2015 and 2016.

In October 2016, the defendants began to sell the product that is at the heart of Mr. Curry's complaint; the defendants' product is a sports nutritional supplement branded Diesel Test Red Series, All Natural Testosterone Booster. Like Mr. Curry's Diesel Test product, the defendants' product comes in red and white packaging with right-slanted all-caps typeface bearing the words "Diesel Test."

In November 2016, Mr. Curry received a message on Facebook from a consumer alerting him of an online "ESPN" article touting the defendants' product.9 Mr. Curry alleges that the article is "fake" and was designed to advertise the defendants' product and to "be identical in appearance to the real website [and] to make web visitors believe they are in fact on the official website of ESPN."10 Confused consumers began sending Mr. Curry emails requesting free trials of the defendants' product or asking for refunds because they were dissatisfied with the product and mistakenly believed the product came from Mr. Curry.

The defendants admittedly sold their product exclusively online through the following websites: (1) www.revlabs.com; (2) www.boostedtestforyou.com; (3) www.amazon.com; and (4) www.ebay.com.11 Although the defendants did not sell their product until 2016, they claimed in advertisements that their product was ranked "Best Product and Number 1" in 2015.12 The defendants have not denied that they concocted a fake ESPN news webpage and created a fake ESPN article touting their product. The defendants conducted all their marketing and advertising for their product through the Internet. In just over seven months, they received more than $1.6 million in gross sales from their product.[13] At least 767 of the sales were to consumers in Illinois.[14]

Mr. Curry promptly demanded that the defendants cease and desist selling their product. The defendants responded and said that they wished to find an "amicable resolution."15On November 15, Mr. Curry sent a second email to Revolution in which he renewed his claims and instructed them to contact his attorney. Two weeks later, however, Joshua Nussbaum, President of Revolution, filed a trademark application for the Diesel Test mark to be used in connection with dietary and nutritional supplements. In the trademark application, Mr. Nussbaum, as signatory, declared that "[he] believes that to the best of [his] knowledge and belief, no other persons ... have the right to use the mark in commerce."16 He further indicated on the application that the "filing base" was "Intent to Use."17 At the time he filed this application, however, the defendants already were selling their product in commerce bearing the Diesel Test mark.

On December 9, 2016, Mr. Curry filed a federal trademark application for the Diesel Test mark for dietary and nutritional supplements indicating that he had first used the mark in commerce in April 2005.18 The United States Patent and Trademark Office ("USPTO") suspended the processing of both applications, citing a likelihood of confusion between the defendants' and Mr. Curry's marks.

B. Procedural History

Mr. Curry filed a pro se complaint alleging the following claims against the defendants: (1) a violation of the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/1 (Counts I and II); (2) a violation of Section 1125(a) of the Lanham Act, 15 U.S.C. § 1125, for false designation of origin and false advertising (Count III); (3) a violation of Section 1125(c) of the Lanham Act, 15 U.S.C. § 1125(c), for trademark dilution by tarnishment (Count IV); (4) a violation of common law trademark protections (Count V); (5) a violation of Section 1125(d) of the Lanham Act, otherwise known as the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) (Count VI); and (6) a violation of 15 U.S.C. § 1120, for filing a fraudulent trademark application (Count VII).

The defendants moved to dismiss for lack of personal jurisdiction, relying on affidavits. Joshua and Barry Nussbaum submitted these affidavits on behalf of themselves as well as Revolution and Management.[19] In these affidavits, they denied knowing about Mr. Curry's Diesel Test product before they began selling their own version in 2016.20 They also denied "see[ing] any advertisements for products sold by [Mr. Curry] until this lawsuit was filed."21 The defendants further denied "know[ing] that [Mr. Curry] was located in Illinois until this lawsuit was filed."22

According to these affidavits, "Revolution does not hold itself out to do business in Illinois" on its website.23 Although Revolution lists on its website several companies where its products can be purchased, none of the listed companies are located in Illinois. It is not disputed that the defendants (1) are not registered to do business and do not have a registered agent in Illinois; (2) do not have a place of business in Illinois, a telephone, or a mailing address in Illinois; (3) do not have any employees located in Illinois or any who have traveled to Illinois for business; (4) do not have any real or personal property in Illinois; and (5) have never attended any trade shows or participated in any business-related meetings in Illinois.

Further, Barry Nussbaum asserted that he has never "been involved in the marketing, sale, distribution, or manufacturing of any of the products sold by Revolution" despite being its CEO.24 Joshua Nussbaum admits that he "learned of [Mr. Curry's] claimed trademark ... through a Facebook message sent by [Mr. Curry] to Revolution on November 13, 2016."25

Although Mr. Curry did not submit a counter-affidavit in response to the defendants' affidavits, he did file a response to the defendants' motion to dismiss in which he submitted additional evidence. For example, Mr. Curry provided evidence that Revolution's "fully interactive website ... makes available various dietary supplements with shipping options that include the possibility to select Illinois as a ship to state."26 Mr. Curry also stated that the "[d]efendants have shipped and sold their counterfeit DIESEL TEST to Illinois residents."[27] Consumers in...

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