Copyright infringement is channeled into (c), not state or Lanham Act claims

Quadratec, Inc. v. Turn 5, Inc., 2015 WL 4876314, No.
13–6384 (E.D. Pa. Aug. 13, 2015)
 
The parties compete to sell removable soft tops and other
aftermarket parts and accessories for Jeep vehicles. Quadratec alleged that it
invests substantial resources in the advertising of its products by “creating
tens of thousands of unique photographs” and writing descriptions of the
photographs, which “differentiate it from all of its competitors in the
automotive market.” Except for Turn 5, which allegedly engaged in extensive
copying of its images and descriptions (including a Quadratec photo with a
superimposed Turn 5 logo on it), despite Quadratec’s demands that it stop.  (Why no 1202 CMI claim?  Although it seems unlikely to have concealed copyright infringement, so quite probably futile, though that doesn’t distinguish it from various other claims asserted.)  Further, Quadratec alleged that Turn 5 falsely
advertised its Baricade Soft Top products by falsely claiming that they exceeded
original equipment manufacturer standards and are made from Black diamond
sailcloth material (though this allegation isn’t addressed in this
ruling).  Quadratec registered its images
and sued.
 
Copyright infringement: though the complaint alleged that
images other than those specifically identified might have been infringed, it
also provided sufficient notice about particular registered images, and
Quadratec wouldn’t be allowed to base claims on unidentified images. However,
statutory damages/attorneys’ fees claims were dismissed because in all cases
the infringements began before the registrations; allegations that Take 5 began
infringing new parts of the
registered work post-registration were insufficient because statutory damages
go on a work by work basis.
 
§43(a)(1)(A): Dastar
barred this claim. There was no misrepresentation of the origin of the goods
for sale.  Quadratec argued that it was
claiming false designation of the origin of the services at issue, here providing catalog services. That is, Take 5’s
use of the product presentations was likely to confuse Quadratec’s customers
into believing that “identical product presentations in both Plaintiff’s and
Defendant’s catalogs” means that the “catalog sources are the same or otherwise
affiliated.”
 
But Dastar
precludes this argument.  Neither party
is in the business of selling catalog services, only aftermarket Jeep
products.  There could be no confusion as
to the origin of those goods.  The Lanham
Act doesn’t create a cause of action for plagiarism of marketing.
 
§43(a)(1)(B): Again, this failed because there was no
alleged misrepresentation about the
products for sale
, rather than about the source of the marketing materials
used to sell them.
 
Misappropriation: preempted by the Copyright Act.  The alleged deceit involved was not an extra
element because it occurred only by way of reverse passing off, which meant that
there was nothing fundamentally different from a copyright infringement claim.
 
Unjust enrichment: Ditto. 
Quadratec alleged that Take 5 received benefits beyond the mere intrinsic
value of the Quadratec materials, because it diverted profits and goodwill from
Quadratec and saved money on advertising that it could use to lower its prices
in competition with Quadratec.  The
alleged financial benefit in the form of reduced overhead didn’t make the
unjust enrichment claim qualitatively different than the copyright infringement
claim.

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