Hot Shots' Motion to Dismiss.pdf


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10001 Park Run Drive
Las Vegas, Nevada 89145
(702) 382-0711 FAX: (702) 382-5816

MARQUIS AURBACH COFFING

Case 2:12-cv-00239-KJD -RJJ Document 46

Filed 04/12/12 Page 4 of 20

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karaoke jockeys (or “KJs”) have unlawfully copied the CDs and are using the copied music to

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perform karaoke shows and, in the course of doing so, are displaying Slep-Tone’s SOUND

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CHOICE trademark without Slep-Tone’s consent.

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Slep-Tone has filed its numerous lawsuits, with little or no pre-filing investigation and no

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warning. Slep-Tone filed suits against a large number of defendants without differentiating

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between the parties which targets innocent property owners (such as Defendants Hot Shots Bar

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and Grill, The Pub, LLC, Joe, Dan, Decatur Restaurant & Tavern and DDRT, LLC (collectively

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the “Owner Defendants”) who had no knowledge of the alleged infringement, no ability to

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control the music used by independent contractor KJs, and who have otherwise done nothing to

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deserve the burden and bear the cost of defending against a no-warning lawsuit. Slep-Tone has

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filed its lawsuits en masse for the purpose of coercing settlements rather than protecting

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legitimate intellectual property rights. Slep-Tone is obviously banking on the fact that it would

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be far less expensive for each defendant to settle the case than to fight Slep-Tone. This is

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perhaps best evidenced by the fact that none of Slep-Tone’s lawsuits have proceeded to trial and

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few have proceeded past the initial pleading stage.

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This case should be dismissed because Slep-Tone has failed to state a claim upon which

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relief can be granted. Simply put, Slep-Tone’s conclusory allegations and failure to sufficiently

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differentiate between the defendants does not meet even the liberal notice pleading standards

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under Iqbal2 and Twombly.3 Notably, the allegation set forth in the Complaint fail to establish a

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plausible case of direct, contributory, or vicarious trademark infringement or unfair competition.

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The Complaint is further barred by the doctrine of nominative fair use. Finally, the Complaint is

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barred based upon the Dastar doctrine.4

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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007).

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See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37,123 S. Ct. 2041, 156 L. Ed. 2d 18 (2003).

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