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District Court of the United States

Southern Judicial District of New York

National Indoor Soccer, Inc. #CIV. S-10-1788

Plaintiff DEFENDANT’S MOTION TO

DISMISS COMPLAINT

v.

Milieu Vendors, Inc.,

Defendant

TO THE HONORABLE JUDGE OF SAID COURT:

MILIEU VENDORS, INC., Defendant in the above styled and numbered cause, and

files this Motion to Dismiss Complaint. The Defendant would respectfully show the Court the

matters described and detailed in the accompanying Memorandum of Law of same date.

January 18, 2012

[George C. Marshall, The Law Offices of Overlord and Coronet, Leesburg, VA]

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STATEMENT OF FACTS

National Indoor Soccer is a sports conglomerate whose goal is to conduct soccer games

for the enjoyment of the general public. (Complaint, National Indoor Soccer Inc. v Milleu

Vendors, (January 10, 2012) para.1). Although NIS claims to persistently enforce their

trademarks, this organization’s activities are inconsistent as pertaining to perpetuating their team

marks. ( Complain, para. 10). Although this sports league have been in business since 1999, the

plaintiff has only registered their team marks in 2002. ( Complaint, para. 8).

National Indoor Soccer League’s success has fluctuated throughout the years as they have

had to reorganize through miscellaneous problems. ( Complaint, para. 10). The complainant went

through an unexplained hiatus from 2008 to 2010, during which time they did not send any cease

and desist letters. (Complaint, para.5). NIS registers the full team names in their league as

trademarks. ( Complaint, para. 6). However, their team trademarks consists of names such as

Bullets and Chiefs that could be affixed to various sports organizations. (Complaint, para. 6).

Milleu Vendors is a sports business that specializes in selling jerseys to different stores in

order to generate profits. ( Complaint, para. 2). Their corporation is located in New York, and

does frequent business in Delaware. (Complaint, para. 2). Milleu Vendors sold soccer shirts that

had names such as Rigs, Chiefs, and Dogs affixed them. These jerseys were independent of the

National Sports League, and were not influenced by the names of the National Indoor Soccer

teams.

A sole customer of NIS had seen Milleu Vendors’ market this jersey and notified NIS of

his confusion. However, there were no official surveys conducted to substantiate this customer’s

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confusion with other people. This National Indoor Soccer fan also did not give conclusive

evidence to substantiate his allegations of customer confusion.

NIS forwarded a cease and desist letter to Milleu Vendors on August 15, 2011.

Specifically, the complainant’s letter sought to impose on Milleu Vendors a command to stop

selling Milleu Vendors jerseys that National a potential lawsuit if they did not stop using names

which NIS had trademarked. Nevertheless, Milleu Vendors did not follow the letter’s

instructions, but continued to conduct its business. Consequently, NIS filed a lawsuit against

Milleu Vendors, because they stated that Milleu Vendors had committed trademark

infringement.

SUMMARY OF ARGUMENT

National Indoor League’s complaint will have dangerous ramifications if allowed to be

entertained by the court. The Surgeon General has deemed a substantial proportion of young

children unfit to perform even moderate activity. Subsequently, sports organizations such as the

National Football League and Major League Baseball have heroically tried to take on this obesity

epidemic by encouraging youth to keep physically active.

However, National Indoor League’s lawsuit is undermining these noble efforts by

restricting customer’s ability to purchase jerseys from the outlets that they choose. As a result,

these customers’ children will be discouraged from participating in sports, and the obesity

epidemic among American children will increase.

Milleu Vendors can prove that they did not

ARGUMENT

LIKELIHOOD OF CONFUSION.

A. Under the Second Circuit case law, this complaint must be dismissed because the

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complainant has not asserted enough evidence to validate their claims of likelihood of

confusion.

1. The Polaroid test has eight factors to prove trademark infringement, which are the

strength of the particular plaintiff’s mark, the similarity of plaintiff's and defendant's marks;

the proximity of the products as defined by location and actual competition; the likelihood

that plaintiff will be able to produce merchandise like defendant’s, actual confusion

between defendant’s and plaintiff’s products; the defendant’s intentions, the quality of

defendant's product in comparison with the plaintiff’s original trademark, and the

sophistication of buyers.2. However, the Second Circuit has emphasized that these eight factors determine the focal

element of likelihood of confusion. The Lanham Act has substantiated the importance of

likelihood of confusion by stating that the plaintiff only has a cause of action if there is

conclusive evidence of likelihood of confusion Under the Polaroid test, in order to prove

likelihood of confusion, the plaintiff must show that there was genuine customer confusion,

strength of the mark, and similarity between marks that would interfere with business

3. Under Polaroid, the court held that genuine customer confusion encompasses verifiable

evidence

there is Indistinguishable differences between marks can be defined as the duplicate and the

original’s similarities are so negligible as to insign See The Lanham (Trademark) Act, 15 U.S.C

§ 1127 (2005)

B. The Second Circuit has consistently ruled that in order to prove likelihood of confusion,

the plaintiffs must have conclusive evidence of actual customer confusion that was proven

through official so that it prevented

interference with business,

The Second Circuit ruled that the defendant had interfered with plaintiff’s business by

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exploiting a recognizable brand to create a potential for likelihood of confusion. Id. First, the court

stated that the element of likelihood of confusion was when the replica of the trademark and the actual

trademark itself were so identical that any differences were insignificant. Id. Therefore, customers and

other people who were vital to the well-being of a particular franchise would be misled about the true

nature of the replica. See

(arguing the sentiment that people would mistakingly think that the duplicate had derived from the

business when in fact they were not related).

Consequently, the Second Circuit concluded that this likelihood of confusion would result in

damaging consequences, because the defendant’s movie was of such dubious morality that the

plaintiff’s business would suffer. Id at 204. Next, the Second Circuit states that the defendant's film

jeopardized future Dallas Cowboys business: “In the instant case, the uniform depicted in "Debbie

Does Dallas" unquestionably brings to mind the Dallas Cowboys Cheerleaders. Indeed, it is hard to

believe that anyone who had seen the defendants' sexually depraved film could ever thereafter

disassociate it from plaintiff's cheerleaders.” Dallas Cowboys Cheerleaders, Inc. v. Pussycat

Cinema, Ltd., 604 F.2d 200, 205 (2d Cir. 1979). As a result, the court judged that the defendant had

committed trademark infringement by interfering with the business of the Dallas Cowboys.

C. Therefore, Milleu Vendors can point to prior Second Circuit case law as evidence that the

plaintiff’s allegations of likelihood of confusion are without merit.

In the case of Milleu Vendors, NIS stated that Milleu Vendors had used names and colors

that were similar to NIS merchandise and therefore produced a likelihood of confusion. NIS’s

affirmation that Milleu Vendors’ production of shirts identical to National Indoor Soccer, Inc had

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intruded upon NIS’s business by lessening the value of the products can be rebutted. See e.g Id at

962 ( depicting the notion that people would be discouraged to buy future NIS products if they

thought that NIS merchandise were subpar). Mr. Manderjaffey, the NIS spokesman, could not

provide evidence of actual customers’ confusion that interfered with business in spite of his

assertions. Milleu Vendors’ goal was not to produce NIS replicas, but to sell merchandise to its

own set of customers. See e.g 583 F.3d at 961 Therefore, NIS’s statement that there was a

likelihood of confusion is refutted.

[Rule Application]

CONCLUSION

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