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Willcock v. My Goodness! Games, Inc.

United States District Court, D. Maryland, Southern Division

August 21, 2018

LOREN ANDREW WILLCOCK, Plaintiff/Consolidated Defendant and Counter Claimant,
v.
MY GOODNESS! GAMES, INC., Defendant/Consolidated Plaintiff and Counter Defendant.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         Loren Andrew Willcock entered into three separate agreements with My Goodness! Games, Inc., a mobile entertainment company also known as Games2U and Games2U Entertainment (“Games”), to operate franchises in Maryland and Virginia. Compl., ECF No. 2. Things did not go well between the parties, Willcock filed suit in this Court, Games filed a demand for arbitration in Texas, and Games filed suit for a preliminary injunction in the United States District Court for the Western District of Texas, which granted a temporary restraining order and thereafter a preliminary injunction against Willcock. The federal cases were consolidated, and now pending is Games's motion to dismiss this litigation in favor of arbitration, ECF No. 39, which the parties fully briefed, ECF No. 40, 41. A hearing is not necessary. See Loc. R. 105.6. Games clearly seeks to compel arbitration while the preliminary injunction remains in effect. All claims are subject to arbitration, but this Court cannot compel arbitration in Texas, and the preliminary injunction cannot survive dismissal of this case. Therefore, I will transfer this case to the Western District of Texas for that court to compel arbitration of all claims.

         Background

         The parties signed three franchise agreements between December 3, 2008 and March 20, 2012; by October 28, 2016, Willcock believed that Games had breached all three, and he filed a Complaint for Rescission against Games in the Circuit Court for Calvert County, Maryland. Compl.; Not. of Removal, ECF No. 1-3. He seeks rescission of all three contracts, as well as damages in the amount he has paid under the contracts, plus interests, costs and fees. Compl. 3. Games removed to this Court on December 21, 2016. Not. of Removal.

         Meanwhile, pursuant to an arbitration provision included in the agreements, Games filed a demand for arbitration before the American Arbitration Association in Austin, Texas (“Arbitration in Texas”), “alleg[ing] claims for breach of contract (including breach of a non-compete provision), federal trademark infringement, federal statutory unfair competition, common law trademark infringement, and common law unfair competition.” Arb. Dec. 1-2, ECF No. 39-1. And, Games filed a Verified Complaint for Preliminary Injunction against Willcock in the United States District Court for the Western District of Texas on or about November 9, 2016. ECF No. 1 in PWG-17-293. Games alleged that it received notice from Willcock “of his intention to abandon his franchises in violation of the express terms parties' agreements, ” after which it terminated the agreements. It claimed that the termination obligated Willcock to “cease his use of Plaintiff's trademarks, turn over Plaintiff's confidential operating material, pay all amounts due under the franchise agreements, and not compete within a fifty-mile radius of his assigned territory or that of any other of Plaintiff's franchisees, ” but Willcock refused to comply. Id. ¶ 1. Games claimed breach of the franchise agreements, statutory trademark infringement, statutory false designation of origin and unfair competition, common law trademark infringement, and common law unfair competition, and it sought preliminary injunctive relief. Id. ¶¶ 60-95.

         The Texas court granted a temporary restraining order, ordering that Willcock;

all of his officers, agents, servants, employees, and attorney; and all those acting in concert or participation therewith shall immediately cease and desist and are thereafter enjoined and restrained from:
a. directly or indirectly, for himself, or through, on behalf of, or in conjunction with any person, persons, partnership, or corporation, from owning, maintaining, advising, helping, investing in, making loans to, being employed by, engaging in, or having an interest in any business specializing in whole or in part, in the activities conducted by Games2U franchisee, within a fifty-mile radius of the Annapolis-Davidsonville, Tyson's Corner and Rockville/Potomac locations covered by the Franchise Agreements and within a fifty-mile radius of any business using the Games2U System or Proprietary Marks, whether franchised or owned by Games2U or any subsidiary or affiliated company;
b. directly or indirectly using the phrase GAMES2U or any term confusingly similar to any one or more of the GAMES2U Marks in connection with the operation, sale, promotion, or advertising of any mobile entertainment business;
c. otherwise continuing to infringe upon Games2U's GAMES2U Marks;
d. using in connection with any products or services, any false or deceptive designation or description, whether by words or other symbols or representations, which suggests or implies any relationship with Games2U or Games2U's products and services;
e. unlawfully trading upon and appropriating the goodwill and business reputation of Games2U or Games2U's products and services;
f. engaging in any acts of unfair competition against Games2U or Games2U's products and services; [or]
g. conspiring with, aiding, assisting, or abetting any other person or entity in engaging in or performing any of ...

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