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Etrailer Corporation v. Automatic Equipment Mfg. Co

United States District Court, E.D. Missouri, Eastern Division

March 29, 2018

ETRAILER CORPORATION, Plaintiff,
v.
AUTOMATIC EQUIPMENT MFG, CO. d/b/a BLUE OX Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE

         Introduction

         This matter is before the Court on Defendant's Motion to Dismiss, [Doc. No. 8]. Plaintiffs oppose the Motion. Defendants have filed a Reply to the Opposition. For the reasons set forth below, the Motion is granted.

         Facts and Background

         Plaintiff's Complaint alleges the following:

         Plaintiff is an online vendor of motor vehicle accessories such as trailer hitches, trailer parts, roof racks, bicycle racks, cargo carriers, and towing accessories manufactured by Blue Ox, among others.

         etrailer is the sole legal owner of a multitude of works ("Works") in the form of photographs and videos which it displays on its website for customers using its website to view. The Works of the etrailer Portfolio are original, creative works in which etrailer owns protectable copyright interests. etrailer invested significant time and money building the etrailer Portfolio. In creating the Works, etrailer took steps to ensure that its name, logos and marks (collectively "etrailer Marks") were prominently featured in the Works.

         etrailer has obtained multiple active and valid copyright registrations with the United States Copyright Office, which registrations cover many of the Works of the etrailer Portfolio and many other photographic and videographic Works are the subject of pending copyright applications. etrailer federally secured its rights to the Works in the etrailer Portfolio with Copyright Registrations in the United States Copyright Office. etrailer has been at all times relevant hereto and is the sole owner of all rights, title and interest in and to the Copyright Registrations.

         etrailer has displayed its copyrighted Works on its website http://www.etrailer.com to enable sales of its products depicted in those Works.

         Blue Ox is the registered owner of the Website www.BlueOx.com (the Website”) and is responsible for its content. Blue Ox uses the Website to sell the same or similar merchandise as etrailer and Blue Ox profits from this sales activity. Without license, permission or authorization from etrailer, Blue Ox infringed etrailer's copyrights by copying, modifying, displaying on its Website and in catalogs and disseminating to etrailer's competitors many of etrailer's Works (the "Infringements"). As noted, Blue Ox has infringed many of etrailer photographs and etrailer is correlating each infringed photograph to a registration number.

         Blue Ox was aware of circumstances or facts from which the fact of infringement of etrailer's copyrights was apparent. To wit, etrailer believes that the number of unauthorized copies is at least in the hundreds. In addition, various photographs that were illegally misappropriated by Blue Ox depict an etrailer marking or logo on products or individuals shown in the particular Work. As part of its scheme to utilize etrailer's protected Works and defraud customers, Blue Ox removed or obscured etrailer's marks or indicia that appeared in certain of those photographs and videos.

         Plaintiff claims that Defendant engaged in willful direct copyright infringement in violation of the federal Copyright Act, 17 U.S.C. § 501, by copying and displaying thousands of Plaintiff's photos on Defendant's website and on eBay, to sell the products depicted in the photos (Count I); removed etrailer Marks from some of the products depicted in the photos, which is likely to cause confusion, mistake, and deception as to the affiliation, connection, or association of the products with etrailer in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count II); and have engaged in unfair competition/false designation of origin in violation of state and common law (Count III).

         For relief, Plaintiff seeks a finding that Defendant has infringed Plaintiff's rights to the photos; an order directing Defendant to provide proof of destruction of unlawful copies of the photos or to allow Plaintiff to effect the same; an award of monetary damages (statutory damages of $150, 000 per infringement or actual damages and disgorgement of profits to be proven at trial, attorney's fees, and costs); and permanent injunctive relief; entry of a judgment that Blue Ox has competed unfairly with etrailer in violation of etrailer's rights under 15 U.S.C. § 1125(a) and the common law of Missouri; entry of a judgment that Blue Ox's activities have violated Missouri law; entry of an order directing Blue Ox to compensate etrailer for any and all advertising or other expenses necessary to dispel the public confusion caused by Blue Ox's unlawful acts; entry of a judgment against Blue Ox for monetary damages in an amount to be proven at trial, including but not limited to, all amounts necessary to compensate etrailer for Blue Ox's wrongful use of the etrailer Marks, for Blue Ox's profits and for reasonable attorneys' fees and costs; entry of a judgment against Blue Ox for ...


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