Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC
| Decision Date | 12 September 2011 |
| Docket Number | No. 08 Civ. 4810 (THK).,08 Civ. 4810 (THK). |
| Citation | 80 Fed.R.Serv.3d 1025,813 F.Supp.2d 489 |
| Parties | PURE POWER BOOT CAMP, INC., et al., Plaintiffs, v. WARRIOR FITNESS BOOT CAMP, LLC, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Matthew Henry Sheppe, Sherri Lee Eisenpress, Reiss, Eisenpress and Sheppe LLP, Pasquale A. Razzano, Fitzpatrick, Cella, Harper & Scinto, New York, NY, for Plaintiffs.
Carolyn Diane Richmond, Richard B. Cohen, Eli Zev Freedberg, Oksana Gaussy Wright, Daniel Adam Schnapp, Fox Rothschild, LLP, Darren Paul Brian Rumack, The Klein Law Group, New York, NY, for Defendants.
Plaintiffs Pure Power Boot Camp, Inc., Pure Power Boot Camp Franchising Corporation, Pure Power Camp Jericho Inc., and Lauren Brenner (collectively “Plaintiffs” or “Pure Power”), brought this action against Defendants Warrior Fitness Boot Camp, LLC, Alexander Kenneth Fell, Ruben Dario Belliard, Jennifer J. Lee, and Nancy Baynard (collectively “Defendants” or “Warrior Fitness”), accusing Defendants of stealing their business model, customers, and confidential and commercially sensitive documents, breaching contractual and employee fiduciary duties, and infringing Plaintiffs' trade-dress. Defendants filed counterclaims asserting violations of the New York Labor Law, violations of the Stored Communications Act, and unauthorized use of Defendants' images in violation of New York Civil Rights Law. The Court's jurisdiction is derived from Plaintiffs' federal statutory trade dress claims, under 28 U.S.C. § 1338(a) and (b).
The parties consented to trial before this Court, pursuant to 28 U.S.C. § 636(c). The Court presided over a bench trial from January 24 to February 4, and March 14–18, 2011. The following Opinion constitutes the Court's findings of fact and conclusions of law.
While working as a trader on Wall Street in 2002, Plaintiff Lauren Brenner (“Brenner”) decided to start her own physical fitness business, based upon the concept of a military boot camp. Investing substantial time and all of her savings, on or about December 17, 2003, Brenner opened Pure Power Boot Camp, Inc. (“Pure Power Boot Camp”), a facility located at 38 West 21st Street in Manhattan. Pure Power Boot Camp is modeled, in part, after United States Marine Corps training facilities. It is designed in military camouflage colors and decor and, unlike traditional gyms, does not have a membership fee; instead, clients sign renewable contracts for “tours of duty,” meaning that “recruits”—as Pure Power clients are called—sign up for a program to attend a certain number of sessions per week for a set number of weeks. If a recruit does not show up for a scheduled class, Pure Power personnel contacts them directly.
An important part of Brenner's concept is to use physical objects as part of an indoor obstacle course, modeled after a Marine Corps outdoor obstacle course at Fort Knox, to build confidence, physical fitness, and self-empowerment in her clients. To construct this obstacle course, Brenner contacted a company that built high rope courses. The owner of that company arranged for Brenner to visit Fort Knox and inspect the outdoor obstacle course there, in order to assess whether any of the individual obstacles were suitable for use in a smaller, indoor facility to be used by civilians. Brenner did so and adapted some of the Marine Corps' obstacles to her concept. She designed the facility decor as well as the arrangement of the obstacles, using a flooring made of a crushed rubber tire material designed to look like outdoor dirt. The obstacles are surrounded by a running track, separated by a border of dark sand bags. One of Brenner's insights was that people will stick to an exercise regime if they work out in a group. She thus concluded that classes should be limited to 16 people who go through “training” together, and are called “recruits.” The recruits wear a Pure Power Boot Camp T-shirt and camouflage pants. Another important component of her plan is to use the physical obstacles to build self-confidence. In addition, Brenner designed fitness routines involving the obstacles in order to develop various body muscles and muscle strength, as well as cardiovascular health.
Brenner employed former marines as “drill instructors,” viewing it as an opportunity to provide jobs to veterans returning from combat in Iraq. In addition, Brenner felt that the hiring of military personnel would lead to good press coverage for her business. Because Pure Power's training techniques were not developed or taught in the United States military, when new drill instructors are hired, they are required to observe and participate in the Pure Power Program, and teach alongside an experienced instructor, before being allowed to teach on their own. All drill instructors are required to obtain certification as a fitness instructor.
After the Pure Power facility was constructed according to her design, Brenner traveled to the Marines' Garden City Reserve Base to make a presentation to marines who had recently returned from combat service. Shortly following that presentation, a number of marines came to Pure Power to experience the program. One of those marines was Defendant Ruben Dario Belliard (“Belliard”).
Belliard started working at Pure Power Boot Camp as an independent contractor in April 2005, and was hired as a full-time Pure Power drill instructor in or about July 2006. On Belliard's recommendation, Brenner hired Defendant Alexander Kenneth Fell (“Fell”), another marine, in or about August 2005. Fell started working as a full-time Pure Power drill instructor in or about September 2006. Both Belliard and Fell were well-liked and sought-after instructors. Indeed, Belliard eventually became Pure Power's head drill instructor. Belliard was paid more than the other Pure Power drill instructors and when Brenner was not around, Belliard was left in charge. Brenner placed great trust in Belliard and, at least from her perspective, came to view him as a close friend.
Pure Power was a unique concept and unlike most other exercise facilities. It was an immediate success, garnering attention from a variety of media outlets, including MSNBC and Inside Edition. Brenner personally appeared on a variety of television shows, including NBC's The Today Show, the Donny Deutsch Show, and the Anderson Cooper Show on CNN. Brenner's intent when she created Pure Power was not to have one location, but to develop a business plan that could be rolled out as a national franchise. In 2006, she took steps to franchise the Pure Power concept. She hired a franchise attorney, with whom she developed a business plan, as well as a start-up manual and an operations manual, which described how to open and operate a Pure Power facility. Brenner also participated in the Franchise Expo show in California, and took Belliard along to assist her. Pure Power had a booth at the show and a USA Today reporter featured Pure Power as a top new franchise in 2006. ( See Pls.' Ex. 211.) The publicity that Pure Power received led to numerous inquiries from potential franchisees.
In preparation for Pure Power's franchising roll-out, Brenner had the drill instructors sign an Employment Agreement as a condition of continued employment. With the exception of Fell, every drill instructor, Belliard included, admits to having signed an Employment Agreement. Fell, however, disputes having signed such an Employment Agreement, while Brenner insists that he did.
The Employment Agreement contains a number of contractual provisions, including: (1) a provision that requires employees of Pure Power to devote their “skills and best efforts to the Company” and to work to further the company's best interests; (2) a nondisclosure provision; (3) a provision that precludes Pure Power employees from challenging the validity or enforceability of Pure Power's alleged “Intellectual Property”; (4) a non-compete provision; and (5) a non-solicitation provision. ( See Pls.' Ex. 329.) The non-compete provision precludes post-termination employment, anywhere in the world, for a period of ten years, at any business that competes directly with Pure Power, which includes any company that uses “obstacle courses” or “exercises derived from military training” or a “military theme.” The non-solicitation provision precludes solicitation, or assisting in the solicitation of, any Pure Power clients.
To assist in the franchising of the Pure Power business, Brenner also hired a trade dress attorney, who recommended that Pure Power register its trade dress. Pure Power's initial application for registration of its trade dress was rejected by the United States Patent and Trademark Office (“USPTO”). After Plaintiffs submitted additional documentation, the USPTO eventually granted Plaintiffs a service mark. In the USPTO registration, the Pure Power trade dress is described as follows:
THE MARK CONSISTS OF A DRAWING OF AN EXERCISE FACILITY, STYLED TO LOOK LIKE A MILITARY BOOT CAMP TRAINING COURSE COMPRISED OF CAMOUFLAGE WALL AND CEILING DECOR, CRUSHED RUBBER FLOORING, A TIRE RUN, CLIMBING WALLS, CLIMBING NETS, AND HURDLES, WITH THE TERMS “DESIRE,” “STRE,” “COURAGE,” AND “UTY.” 1
Before actively pursuing franchise opportunities, Brenner decided to open a second fitness facility—Pure Power Boot Camp Jericho Inc. (“Jericho”)—located in Jericho, New York. The Jericho location looks somewhat different than the Manhattan location and has more obstacles. Brenner offered Belliard a partnership in the Jericho location, which he refused, stating that he did not have enough money to invest. In the first few months that the Jericho facility was open, Brenner spent the majority of her time there.
Around July 2007, while they were still working at Pure Power, Defendants Belliard and Fell began planning their own military-themed gym—Warrior Fitness Boot Camp, LLC ...
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