ABC doesn’t find getting rid of pro se (c) and TM claim so simple

 Manigault v. ABC Inc., 2018 WL 2022823, No. 17-CV-7375
(S.D.N.Y. Apr. 12, 2018) (magistrate judge)
An app owner’s copyright and trademark claims against a news
organization for broadcasting a news story about apps, including his, survive a
motion to dismiss on the merits (though the owner has to replead copyright
ownership).  Partly this terrible result
is from bad Second Circuit precedent, but partly it stems from a
refusal to consider the content of the accused TV segment on a motion to
dismiss, although doing so is clearly acceptable because the content is
integral to the complaint.  Despite the bad Second Circuit precedent, this is an easy case for dismissal.  Should I have an “argh” tag?
Manigault alleged that he “owns KeyiCam unregistered
Trademark, which KeyiCam is Software that takes a picture of a Key and provides
the biting code to end user.” ABC allegedly infringed his copyright and
trademark rights “by showing a picture of KeyiCam website” “in connection with
their News ‘Locked out? Smartphone app might be key to solving problems’ and
‘KeyMe addresses security concerns of key duplication.” ’ “ABC Inc advertised
on their [sic] website that… KeyMe isn’t the only game in town, though;
there’s also Keys Duplicated and KeyiCam.” Manigault alleged that ABC’s use of
the marks similar to KeyiCam “is likely to cause consumers mistakenly to
believe that the [goods identical or similar to KeyiCam] emanate from or are
otherwise associated with KeyiCam,” causing KeyiCam to lose business.
ABC explained that Manigault’s claim “arises from a consumer
news segment that was broadcast on [its 6abc’s] program” reported by journalist
Nydia Ha, which “lasted roughly three and a half minutes.” According to ABC,
the segment reported by its journalist “reviewed the phenomena of smartphone
applications … that allow consumers to create and store virtual copies of
their keys – digital copies which can then be used to order physical duplicates
of the keys if they are lost.” “The report focused on one service called
KeyMe,” explained how it works and “mentioned the names of the other two
services, a screenshot from each business’s web site was displayed on the
screen for about a second each.” ABC contends that it “also posted an article
on [its 6abc] website summarizing the news report,” which included “hyperlinks
to the websites for each of the companies mentioned in the report.”
Since Manigualt was pro se, his allegations had to be construed
ABC argued that the complaint “is premised on the assertion
that the ABC news report is a commercial advertisement for key duplication
services. It is not, and so the Complaint must be dismissed as a matter of
law.” The magistrate deemed this argument “meritless,” because Manigault’s
allegations had to be taken as true on a motion to dismiss, and he alleged that
“KeyiCam appeared in ABC Inc advertisements” and “ABC Inc advertised on their
[sic] website that … KeyMe isn’t the only game in town, though; there’s also
Keys Duplicated and KeyiCam”; and “KeyiCam is mixed in the broadcasted
commercial in ABC News with other similar Startups such as Keyme and Keys
Duplicated that offer similar goods and services.”  This was enough.
Likewise, the magistrate rejected ABC’s argument that
confusion was implausible and that reference to KeyiCam was nominative fair
use.  Without discussing Twiqbal, the magistrate ruled that a
challenge to plausibility went to the merits of the trademark infringement
claims, as did nominative fair use (citing IISSCC) and First Amendment defenses,
thus requiring a summary judgment motion or trial.
So many problems. 
First: “confusion over what?” 
Construed as liberally as possible, the complaint still has no
allegation that there’s confusion over ABC’s connection with Manigault.  Mis-reporting, even assuming that’s what
happened, isn’t generally directly infringing, and at most secondary liability
would seem to be an issue.  Cf. the
Hangover case, in which the court points out that confusion over whether a piece
of luggage shown in a movie was actually from LV is not the kind of confusion
against which the Lanham Act is directed. Louis Vuitton Mallatier S.A. v.
Warner Bros. Entertainment Inc., 868 F. Supp. 2d 172 (S.D. N.Y. 2012) (granting
motion to dismiss).
The Second Circuit’s bizarre treatment of nominative fair
use has made this harder, but invoking a trademark doesn’t inherently remove
12(b)(6) as an option.  A motion to
dismiss should still be viable “where simply looking at the work itself, and
the context in which it appears, demonstrates how implausible it is that a
viewer will be confused into believing that the plaintiff endorsed the
defendant’s work.” Elec. Arts, Inc. v. Textron Inc., No. C 12-00118 WHA, 2012
WL 3042668, at *5 (N.D. Cal. July 25, 2012); see also Hensley Mfg. v. ProPride,
Inc., 579 F.3d 603, 610 (6th Cir. 2009) (affirming grant of motion to dismiss
where the defendant did not use the trademark to identify the source of its
products or to suggest an association between the defendant and the plaintiff);
Cummings v. Soul Train Holdings LLC, 67 F. Supp. 3d 599 (S.D.N.Y. 2014)
(granting motion to dismiss where confusion based on inclusion in artistic work
was implausible); cf. Kelly-Brown v. Winfrey, 717 F.3d 295 (2d Cir. 2013)
(recognizing that even descriptive fair use, an affirmative defense, can be
resolved on a motion to dismiss where the necessary facts are evident from the
complaint).  This practice is
particularly important given that nominative fair use protects important First
Amendment interests, and that early resolution of assaults on news reporting
prevents chilling core First Amendment-protected speech.  [Also why we need a federal anti-SLAPP law.]
Similarly, on copyright, the magistrate refused to consider
ABC’s fair use argument under 12(b)(6), considering it an issue only for
summary judgment motion or trial (not citing any cases).  Here’s one saying that 12(b)(6) is a fine
time to resolve clear-cut cases of fair use: TCA Television Corp. v. McCollum,
839 F.3d 168, 178 (2d Cir. 2016), cert. denied, 137 S. Ct. 2175 (2017).
However, Manigault failed to plead ownership of a valid/registered
copyright in any specific work, so the claim was dismissed with leave to
The magistrate also held that there were no allegations that
ABC engaged in deceptive acts or practices, so claims for such under New York
law had to be dismissed—inconsistent with the TM claims, but it’s hard to be

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