Flentye v. Kathrein, 06 C 3492.

• Decision Date: 18 April 2007
• Docket Number: No. 06 C 3492.,06 C 3492.
• Citation: 485 F.Supp.2d 903
• Parties: Tim FLENTYE and 7703 Sheridan Road Building Corp. d/b/a Flentye Properties, Plaintiffs, v. Michael L. KATHREIN a/k/a Michael Lee, and Kathrein LLC d/b/a Lee Street Management, Defendants.
• Court: U.S. District Court — Northern District of Illinois

485 F.Supp.2d 903

Tim FLENTYE and 7703 Sheridan Road Building Corp. d/b/a Flentye Properties, Plaintiffs, v. Michael L. KATHREIN a/k/a Michael Lee, and Kathrein LLC d/b/a Lee Street Management, Defendants.

No. 06 C 3492.

United States District Court, N.D. Illinois, Eastern Division.

April 18, 2007.

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Nora A. Preece, Alter & Weiss, Chicago, IL, for Plaintiffs.

James Jacob Lessmeister, Collins & Bargione, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

FILIP, District Judge.

Tim Flentye and 7703 Sheridan Road Building Corporation d/b/a Flentye Properties (collectively, "Plaintiffs") filed suit against Michael Kathrein, a/k/a Michael Lee, and Kathrein LLC d/b/a Lee Street Management (collectively, "Defendants"). Plaintiffs' First Amended Complaint ("Complaint") alleges: violations of the Anti-Cybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d) (Count I); unfair competition under the Lanham Act, 15 U.S.C § 1125(a) (Count III); unfair competition under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS § 510/1 et seq. (Count IV); defamation (Count II); misappropriation of identity (Count V); and intentional infliction of emotional distress (Count VI). (D.E.15.)¹ The case is before the Court on the motion to dismiss of Michael Kathrein, a/k/a Michael Lee ("Lee") (D.E.24), and the motion to dismiss and/or motion for a more definite statement of Kathrein LLC ("Kathrein"), which is alleged to do business as Lee Street Management. (D.E.19.) For the reasons stated below, the motions are granted in part and denied in part.

RELEVANT FACTS²

Plaintiff Tim Flentye ("Flentye") is a registered agent of Flentye Properties, an Illinois assumed name under which the Flentye family has promoted apartment rental services in Chicago for many years. (Id. ¶¶ 2, 11, 54.) Lee is the sole proprietor of Lee Street Management ("Lee Street"), an unregistered entity promoting apartment rental services in the Chicago area. (Id ¶ 3.) Plaintiffs and Defendants rent similar apartments in the Rogers Park neighborhood of Chicago, and therefore are competitors. (Id ¶ 9-10, 16-18.)

Lee Street promotes apartment rental services utilizing real estate owned by Kathrein. (Id. ¶ 3.) The Complaint refers to Kathrein as a "corporation organized under the laws of Delaware." (Id.) Plaintiffs allege that Lee devised Kathrein for the sole purpose of holding title to real estate through which Lee operates Lee Street's activities. (Id. ¶ 4.)

Plaintiffs aver that they have invested considerable time and resources in the service marks "Tim Flentye," "Flentye," and "Flentye Properties." (Id. ¶¶ 11-14.) Plaintiffs use the marks to promote their real estate business, and through such use and related commercial activities, Plaintiffs have "acquired a favorable and extremely valuable reputation." (Id. ¶ 14.)

Plaintiffs allege that Defendants registered the domain name flentye.com on September 20, 2000.³ (Id. ¶ 20.) In April of 2003, Defendants registered the domain names timflentye.com and flentyeproperties.com. (Id. ¶ 21-22.) In March of 2006, Plaintiffs contacted Lee and Lee Street through their attorneys and demanded that they cease and desist the use of these three domain names. (Id. ¶ 25.) On April 7, 2006, "Plaintiffs filed a UDRP complaint against Defendants with [the] ICANN domain arbitration provider the National Arbitration Forum," (Id. ¶ 26.⁴) After both plaintiffs and defendants in the arbitration proceeding participated in selecting a three-member UDRP panel, the panel issued a unanimous decision ordering that timflentye.com, flentye.com, and flentyeproperties.com be transferred from Defendants to Plaintiffs. (Id. ¶¶ 28-29.) The decision, issued on May 17, 2006, held that: Plaintiffs owned trademark rights to the marks; all three of the domain names were either identical to, or confusingly similar to, Plaintiffs' marks; Defendants had no rights or legitimate interest in any of these domain names; and the domain names were registered and used by Defendants in bad faith. (Id. ¶ 29.) On June 7, 2006, less than two months after this decision, Defendants allegedly registered the domain name timflentye-not.com, and used it to direct users to their own website, leestreet.com. (Id. ¶¶ 23, 43-44.) On May 30, 2006, Lee filed a "complaint for judicial review and petition to vacate arbitration award," in the Circuit Court of Cook County. (Id. ¶ 42; D.E. 19-2 at 4.)

Plaintiffs also allege that Defendants have wrongfully used the Flentye name through the use of a "meta tag." (Id. ¶¶ 30-35.) Meta tags are key words associated with a website's subject matter that can be embedded into the source code of a website to direct searchers of these keywords to the website. (Id. ¶ 30.) Plaintiffs allege that Defendants are using the meta tag "Flentye," on a website they own, apartmentzone.us, to direct users to leestreet.com. (Id. ¶¶ 31-33.) Both apartment zone.us and leestreet.com were register to Lee in 2002 and 2000, respectively. (Id. ¶¶ 34-35.)

In the defamation count, Plaintiffs state that Defendants have published defamatory statements concerning Flentye on the websites timflentye.com, flentye.com, flentyeproperties.com, timflentye-not.com, timflentye-not.com, and rogerspark.tv. (Id. ¶ 72.) These websites allegedly include false assertions that "Flentye uses a closed circuit video camera for illegal and/or sexually motivated purposes, ... record[s] activities through [tenants'][tenants'] bedroom windows at night," and possesses "illegally obtained recordings" that were recorded in this manner. (Id) Defendants also allegedly published statements that Plaintiffs "`use [Chicago Alderman] Joe Moore as a tool to satisfy [their] own personal, vindictive obsession' and thus `put tenants at risk,' that Plaintiff Tim Flentye and Alderman Moore engage in `harassment and coabuse of office,' and that Plaintiff Tim Flentye lacks an `ethical compass.'" (Id) Plaintiffs also allege that on their websites, Defendants have published "defamatory assertions that ... Flentye and his family embrace thievery, deviance and racism, as well as profanity-laced depictions of ... Flentye engaging in bestiality, scatology, and other highly defamatory assertions of a sexually repugnant nature." (Id. If 73.)

Additionally, Plaintiffs allege under their intentional infliction of emotional distress count that Defendants "publish a large color photograph of Tim Flentye's family cemetery marker," and that "[t]his photograph includes visible garbage at the base of the ... marker and it is believed to have been photographed by Defendants or its agents." (Id. 1197.) In the "Misappropriation of Identity" count, Plaintiffs further allege that Defendants employ "numerous e-mail addresses subsuming Plaintiffs name such as timflentye@ gmail.com' in order to tarnish the goodwill of Plaintiffs." (Id. 1192.)

Plaintiffs allege that "Defendants use these domain names with the intent to confuse Plaintiffs' current and prospective customers as to the websites' source and thus misleadingly divert these consumers to pornographic websites and/or websites wherein Defendants publish materials intended to drive away Plaintiffs' customers ...." (Id. 1164.) Plaintiffs allege that in addition to the commercial benefit Defendants enjoy by harming their direct competitor, Defendants also receive money by linking these websites to commercial pornographic websites which pay Defendants n for the "hits" generated by Defendants' websites. (Id. ¶ 65.)

Kathrein has moved to dismiss or, in the a alternative, for a more definite statement. (D.E.19.) Lee has also filed a pro se motion to dismiss on behalf of himself and purportedly on behalf of Kathrein. (D.E.24.)

JURISDICTION

The Court has jurisdiction over the Lanham Act and Anti-Cybersquatting Consumer Protection Act claims pursuant to 15 U.S.C. §§ 1125(a) & (d). The court has jurisdiction over the state unfair competition claim under 28 U.S.C. § 1338(b) because the claim is joined with a substantial and related claim under the trademark laws of the United States. See 15 U.S.C. § 1051, et seq. The Court has jurisdiction over the defamation, misappropriation of identity, and intentional infliction of emotional distress claims under 28 U.S.C. § 1367.

STANDARD OF REVIEW

"A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint for failure to state a claim upon which relief may be granted." Johnson v. Rivera, 272 F.3d 519, 520-21 (7th Cir.2001). In ruling on a motion to dismiss, the court must assume all facts alleged in the complaint to be true and view the allegations in the light most favorable to plaintiffs. See, e.g., Singer v. Pierce & Assocs., P.C., 383 F.3d 596, 597 (7th Cir.2004). Dismissal for failure to state a claim is appropriate where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord, e.g., Brown v. Budz, 398 F.3d 904, 909 (7th Cir.2005) (collecting cases).

Rule 12(e) provides that "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading." Fed.R.Civ.P. 12(e). Rule 12(e) and related caselaw make it "plain that the rule is designed to strike at unintelligibility rather than want of detail. If the pleading meets the requirements of Rule 8 ... and fairly notifies the opposing party of the nature of the claim, a motion for a more definite statement should not be granted." Wishnick v. One Stop Food & Liquor Store, Inc., 60 F.R.D. 496, 498 (N.D.Ill. 1973); accord, e.g., Scholz Design, Inc. v. Buralli, No. 01 C 3650, 2001 WL 1104647, at *4 (N.D.Ill. ...