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Putt-Putt, LLC v. Constant Friendship

April 5, 2013

PUTT-PUTT, LLC,
PLAINTIFF,
v.
CONSTANT FRIENDSHIP, LLC ET AL.,
DEFENDANT.



The opinion of the court was delivered by: Alexander Williams, Jr. United States District Judge

MEMORANDUM OPINION

Pending before the Court is Plaintiff Putt-Putt, LLC ("Putt-Putt")'s Motion for Summary Judgment against Defendant 416 Constant Friendship, LLC ("416 CF"). Doc. No. 12. The Court has reviewed the parties' briefs and accompanying exhibits and concludes that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2011). For the reasons articulated below, the Court will GRANT Plaintiff's Motion for Summary Judgment in part, and DENY in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following undisputed facts are taken from the Complaint, Answer, and the parties' briefs and exhibits submitted in connection with Plaintiff's Motion for Summary Judgment. Putt-Putt is a North Carolina company with its principal place of business in Winston-Salem, North Carolina. Doc. No. 1 at 1-3. Putt-Putt operates as a nationwide franchisor of "family fun establishments," which feature attractions such as miniature golf courses, go-karts, bumper boats, batting cages, and video game rooms. Id. Defendant 416 CF is a Maryland company with its principal place of business in Gaithersburg, Maryland. Doc. No. 1 at 2.

Beginning in 1958, Putt-Putt became the owner of several federal trademark registrations. Doc. No. 12-1 at 3--4. Putt-Putt obtained these trademarks for the purposes of protecting and identifying its goods and services. Doc. No. 12-3 at 2. Recently, Putt-Putt became the owner of a federal trademark application filed on February 6, 2012 for the term "Putt-Putt Fun Center" and a design featuring a ribbon and two flags. Doc. No. 1-9 at 5, 15--17; Doc. No. 1-10 at 2.

Previously, the Mottley Group, LLC ("Mottley Group") operated a Putt-Putt Fun Center at 416 Constant Friendship Boulevard in Bel Air, Maryland*fn1 as an officially authorized Putt-Putt franchisee. Doc. No. 12-3 at 3. As franchisor, Putt-Putt terminated the Mottley Group's franchise agreement on June 9, 2011. Doc. No. 12-5. Shortly after the cancellation of the franchise agreement, the Mottley Group lost possession of the above-mentioned property. Doc. 15 at 2--3. Through later foreclosure proceedings, a different entity, P.D.A. LLC, came into possession of the property located at 416 Constant Friendship Boulevard. Doc. No. 19-2 at 7, 17.

The business presently operating at the address features signage using Putt-Putt's federally trademarked terms and designs, including a cartoon miniature golf ball character named "Buster." Doc. No. 1-5 at 2--8. In its advertisements, the business at 416 Constant Friendship Boulevard publicly labels itself "Putt Putt Fun Center." Doc. No. 12-7 at 6. Online advertisements for a "Putt Putt Fun Center" appear on Groupon.com, Facebook.com, the Baltimore Sun's webpage, and Superpages.com, Doc. No. 12-6 at 2--8. The official website for the "Putt Putt Fun Center" uses the URL www.putt-puttfuncenter.com. Doc. No. 12-7 at 2. The "Putt Putt Fun Center" describes itself to customers as a "family entertainment center in the Constant Friendship shopping center . . . featur[ing] laser tag, moon bounces, miniature golf, 5 batting cages, arcade games, and a concession area." Id. The website also uses several Putt-Putt trademarked images, including the ribbon and flag design illustrated in Putt-Putt's federal trademark application filed on February 6, 2012. Doc. No. 1-9 at 17; Doc. No. 12-7 at 2.

On March 5, 2012, 416 CF filed an application with the United States Patent and Trademark Office ("PTO"), seeking to register the mark "PUTT-PUTT FUN CENTER" for the purposes of "Amusement arcade services; Amusement centers[.]" Doc. No. 1-8 at 2. 416 CF listed 416 Constant Friendship Boulevard as its address. Id. On its application, 416 CF stated that it had used the mark "PUTT-PUTT FUN CENTER" in commerce since January 21, 2012. Id. The Examining Attorney at the PTO issued a non-final Office Action on June 18, 2012 initially refusing to register 416 CF's application due to likelihood of confusion with several of Putt-Putt's trademark registrations. Doc. No. 1-9. On December 17, 2012, 416 CF filed a response to the PTO's Office Action, arguing against the Examining Attorney's conclusion, and urging the PTO to reconsider its application. Doc. No. 30-2. On January 7, 2013, the Examining Attorney issued another non-final Office Action. Doc. No. 30-3. Presently, 416 CF's application is open and PTO proceedings are ongoing. Id.

After communications regarding the alleged use of Putt-Putt's mark, Putt-Putt filed suit against 416 CF and co-Defendant David Vedadi on October 12, 2012. Putt-Putt asserted claims of trademark infringement, unfair competition, and deceptive trade practices in violation of the Lanham Act, the Maryland Consumer Protection Act, and Maryland common law. Putt-Putt requested injunctive relief, compensatory and punitive damages, and the surrender of all materials bearing the Putt-Putt mark.

On November 23, 2012, Putt-Putt moved the Court for Summary Judgment for all claims against 416 CF. See Doc. No. 12. After full briefing by the parties, the Court held a telephonic status conference on February 15, 2013 and discussed Putt-Putt's Motion for Summary Judgment. Following the status conference, the Court granted 416 CF leave to file supplemental briefing to support its position. Doc. No. 24. 416 CF subsequently filed a supplemental brief, and Putt-Putt timely filed a response. 416 CF did not file a reply by the Court's March 18, 2013 deadline. Accordingly, Putt-Putt's Motion is ripe for consideration.

For the reasons articulated below, Putt-Putt's Motion for Summary Judgment on its claims under the Lanham Act and Maryland common law will be granted. Its Motion with respect to its claim under the Maryland Consumer Protection Act will be denied.

II. STANDARD OF REVIEW

Summary judgment is only appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to Judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323--25 (1986). The Court must "draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded to particular evidence." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

To defeat a Motion for Summary Judgment, the nonmoving party must come forward with affidavits or other similar evidence to show that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A disputed fact presents a genuine issue "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. Although the Court should believe the evidence of the nonmoving party and draw all justifiable inferences in its favor, a nonmoving party cannot create a genuine dispute of material fact "through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).

III. ANALYSIS

As an initial matter, Defendant argues that all of Plaintiff's claims are barred by laches.

Doc. No. 28 at 9. Defendant states that Plaintiff failed to act to protect its mark in a timely manner as it knew that the Mottley Group operated an arcade business while in default of its franchise agreement. Id. Defendant's argument fails as a matter of law as laches is a personal defense that could only be asserted by the Mottley Group. See Sweetheart Plastics, Inc. v. Detroit Forming, Inc., 743 F.2d 1039, 1046 (4th Cir. 1984) ("While abandonment results in a loss of rights as against the whole world, laches or acquiescence is a personal defense which merely results in a loss of rights as against one defendant." (citing 2 J. Thomas McCarthy, McCarthy on Trademarks & Unfair ...


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