Veve v. Corporan

Decision Date11 October 2013
Docket NumberCivil No. 12–1073 (GAG).
PartiesJorge Perez VEVE, et al., Plaintiffs, v. Julissa CORPORAN, et al., Defendants.
CourtU.S. District Court — District of Puerto Rico

OPINION TEXT STARTS HERE

Rafael A. Aponte–Garcia, Aponte Garcia, San Juan, PR, for Plaintiffs.

Julissa Zoe Corporan, Utuado, PR, pro se.

OPINION & ORDER AND PERMANENT INJUNCTION

GUSTAVO A. GELPÍ, District Judge.

Jorge Perez Veve and Batey Zipline Adventure, Inc. (collectively Plaintiffs) brought this action against Julissa Corporan and Atabey Eco Tours Corp. (collectively Defendants) alleging trademark infringement, trade dress infringement, false advertisement, and product disparagement under the Lanham Act, 15 U.S.C. § 1051 et seq. ( See Docket No. 1.) Plaintiff also alleges trademark and trade dress infringement under Puerto Rico Law Number 169 of December 16, 2009 (“Law 169”), P.R. Laws Ann. tit. 10, § 223 et seq., illegal trespass, and defamation. ( Id.) Plaintiffs previously filed a motion for default as to all Defendants at Docket No. 98 which was granted at Docket No. 99. Presently before the court is Plaintiffs' unopposed motion for summary judgment. (Docket No. 100.) After reviewing this submission and the pertinent law, the court GRANTS Plaintiffs' motion for summary judgment as to all claims, except trade dress infringement, which the court DENIES. The court also enters DEFAULT JUDGMENT against Defendants as to all claims.

I. Standard of Review

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); seeFed.R.Civ.P. 56(a). “An issue is genuine if ‘it may reasonably be resolved in favor of either party at trial, and material if it ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.’ Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006) (alteration in original) (internal citations omitted).

The moving party bears the initial burden of demonstrating the lack of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. “The movant must aver an absence of evidence to support the nonmoving party's case. The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material.” Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). The nonmovant may establish a fact is genuinely in dispute by citing particular evidence in the record or showing that either the materials cited by the movant “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and give that party the benefit of any and all reasonable inferences. Id. at 255, 106 S.Ct. 2505. Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the non-moving party's case rests merely upon “conclusory allegations, improbable inferences, and unsupported speculation.” Forestier Fradera v. Mun. of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)).

II. Factual and Procedural Background

In or around January 2008, Jorge Perez Veve (Perez) began using the “Batey Zipline Adventure” mark in commerce to identify his eco-tour services.1 ( See Docket No. 100–1 ¶ 1.) The Batey Zipline Adventure mark is registered with the U.S. Patent and Trademark Office (“PTO”). ( Id. ¶ 3.) Perez is the owner of the Batey Zipline Adventure corporation (“Batey”) and Denisse Cruz (“Cruz”) is Batey's manager. ( Id. ¶ 5.) Batey's services include activities such as hiking and sightseeing tours in which customers learn about the natural ecosystems of the Tanamá region, specifically in Barrio Caguana, sector Las Vegas. ( Id. ¶¶ 9, 23.) The tours include visits to caves and navigation of the Tanamá River by boat. ( Id. ¶ 9.) Both Perez and Cruz state that approximately $90,000 has been invested in advertising and marketing the Batey brand via various media outlets, including the Internet, television, and various newspapers and magazines. ( Id. ¶ 11.) They also agree that the Internet is the most effective source of advertising for Batey, as it gives them access to clients worldwide. (Docket No. 100–1 ¶ 12.)

Perez and Cruz started the Batey website in 2008 and have received clients from all over the world. ( Id. ¶¶ 21, 29.) In addition to the website, Perez also advertised for Batey using banners at the restaurant La Familia and the Centro Ceremonial Indígena de Caguana. He has also distributed brochures throughout the Island. ( Id. ¶ 13.)

Defendant Julissa Corporan (Corporan) began developing her company, Atabey Eco Tours Corp. (“Atabey”), in or around September or October 2010. ( Id. ¶ 2.) Corporan stated she alone came up with the Atabey concept. ( Id.) She began marketing the Atabey concept in or around November 2010 and began offering eco-tour services in or around December 2010. (Docket No. 100–1 ¶ 2.) According to Corporan, Atabey offers eco-tour services that include “cave tubing” and hiking tours that include cave visits in the Tanamá River region, Barrio Caguana, sector Las Vegas. ( Id. ¶ 10.) Corporan began marketing Atabey online sometime during 2011. ( Id. ¶ 16.) She advertised the Atabey brand via banners at the La Familia restaurant and the Centro Ceremonial Indígena de Caguana. She has also distributed brochures throughout the Island. ( Id. ¶ 14.) In addition to the website, banners, and brochures, Corporan has advertised Atabey eco-tours in various newspapers and magazines, and on television. ( Id. ¶ 15.) Corporan also mentioned the importance of the Internet as an advertising source, stating that it allows her to reach clientele from all over the world. ( Id. ¶ 16.) Lastly, she states that she gets anywhere from zero to 200 clients a month depending on weather conditions. (Docket No. 100–1 ¶ 16.)

Both Perez and Cruz received phone calls from prospective customers who confused the services Batey offers with the ones Atabey offers, and have often had to explain that the two are different companies. ( Id. ¶ 6.) Specifically, Cruz stated that she constantly had to instruct customers to follow Batey road signs and not Atabey road signs, which confuse many customers because they are often found side-by-side. ( Id.) She says that the customers often complained of the phonetic similarity of the words Batey and Atabey. ( Id.) Furthermore, Mr. Ruben Cintrón (“Cintrón”), formerly half-owner of Atabey, stated that he often received calls at the Atabey phone number from customers asking about Batey services. ( Id. ¶ 7.)

Ms. Maribet Sánchez González (“González”), who lived with Corporan during late 2010 when the Atabey concept was being developed, questioned Corporan about using the name Atabey. ( Id.) Her concerns stemmed from its similarity to the Batey name that was already in use in that region and industry. Corporan ignored her concerns. (Docket No. 100–1 ¶ 7.) Additionally, a Facebook chat found in the record documents a prospective customer, “Are Lis,” confusing the services of Atabey and Batey. (Docket No. 100–1 ¶ 8.)

Corporan started the Atabey website and Facebook page in 2011. ( Id. ¶ 16.) On both, she has uploaded various pictures of the Tanamá region and caves, and the expeditions Atabey offers. ( Id.) However, some of the images displayed on those websites are purportedly of Perez's personal property, most noticeably a suspension bridge. ( Id. ¶¶ 33, 40.) Perez has told Corporan on various occasions that she cannot enter his property without his permission, nor can she use photos of his property to advertise her business. ( Id. ¶¶ 33, 49.) While Perez admits that other eco-tourism companies do business on his property, he states that they do so with his permission. ( Id. ¶¶ 31.)

Corporan also issued a “press release” regarding Batey and Perez personally, claiming that Batey was in violation of Puerto Rico Laws 85 and 111. (Docket Nos. 100–1 ¶¶ 43–45; 101–5.) In the press release, she stated that Perez was responsible for cutting down an endemic species of plant, the caoba bush, and that she called the Natural Resources Department of Puerto Rico (“DRNA,” for its Spanish acronym). ( Id. ¶ 46.) Corporan published the press release a day after the DRNA commenced its investigation. ( Id.) Perez denies this allegation and Corporan offers no proof to substantiate her claims. Corporan also claims that Batey operated without a business license and that it did not pay taxes. ( Id. ¶ 53.) Both statements are false. ( Id.)

The motion for summary judgment is unopposed. The court has granted Defendants numerous extensions of time, warned Defendants to appear on various occasions, and entertained various motions for default to which Defendants have not responded. ( See Docket Nos. 50, 51, 53, 56, 67, 98, & 99.) Certain correspondence sent to Defendants, including the entry of default, has been returned as undeliverable. ( See Docket Nos. 110 & 113.)

III. Discussion

Plaintiffs allege that the Batey commercial image consists of the Batey mark, its website, and the images on it, which depict the suspension bridge, hiking trails, caves, zipline platforms, and organic farming. ( ...

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