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7/27/2019 Davidson v. Maraj - Motion to Dismiss II
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERRENCE DAVIDSON,
Plaintiff,
vs.
ONIKA MARAJ, an individual,and PINK PERSONALITY, LLC,a Delaware limited liability company,
Defendants.
Case No.1:14-CV-00507-RLV
DEFENDANTS MOTION TO DISMISS THE
AMENDED COMPLAINT UNDER FED. R. CIV. P.
12(b)(6), OR FOR A MORE DEFINITE STATEMENT UNDER FED.
R. CIV. P. 12(e), IF ANY CLAIM SURVIVES THIS MOTION TO DISMISS
COME NOW Defendants Onika Maraj and Pink Personality, LLC (Pink)
(collectively, the Defendants) and hereby submit Defendants Motion to Dismiss
The Complaint Under Fed. R. Civ. P. 12(b)(6), Or For A More Definite Statement
Under Fed. R. Civ. P 12(e), If Any Claim Survives This Motion To Dismiss (the
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against Defendants under Fed. R. Civ. P. 12(b)(6) for at least the following
reasons:
Plaintiffs alleged wig designs are not novel and thus cannot
support any cause of action based on any unauthorized use;
Count I (Quantum Meruit), Count II (Unjust Enrichment), and
Count III (Promissory Estoppel) do not state any contract-related
claim because (a) Plaintiff has not alleged any benefits or services
conferred on Defendants for which he was not paid; (b) equity
does not require any payment be made to Plaintiff; (c) Plaintiff has
not alleged that Pink promised him anything; and (c) Plaintiff has
not pled any enforceable promise.
Count IV (Violation of the Georgia Fair Business Practices Act)
does not state a claim because (a) the statute does not allow non-
consumers to challenge the conduct of competitors; and (b)
Plaintiff cannot plausibly allege he relied on any misrepresentation
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pled that his alleged wig designs are distinctive and, accordingly,
they are not eligible for trade dress protection; and
Count VII (Litigation Expenses) does not state a claim because no
independent claim exists under Ga. Code Ann. 13-6-11.
If the Amended Complaint is not dismissed in its entirety, Plaintiff should
provide Defendants a more definite statement under Rule 12(e) to identify the
conduct pertaining to each defendant.
For each of the foregoing reasons, Defendants respectfully request that the
Court GRANT their Motion to Dismiss.
This 22ndday of July, 2014.
Respectfully submitted,
JONATHAN D. DAVIS, P.C.
By: /s/ Jonathan D. DavisJonathan D. Davis, Esq.
(admittedpro hac vice)10 Rockefeller Plaza, Suite 1015
New York, New York 10020
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STOKES WAGNER HUNTMARETZ & TERRELL, ALC
By: /s/ Hayden PaceHayden Pace, Esq.Georgia Bar No. 558595
3593 Hemphill StreetAtlanta, Georgia 30337404.766.0076 (tel)404.521.4313 (fax)[email protected]
Attorneys and Local Counsel for
Defendants Onika Maraj and PinkPersonality, LLC
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LOCAL RULE 7.1 CERTIFICATION AND CERTIFICATE OF SERVICE
Counsel certifies that this document has been prepared with one of the font
and point selections approved by the Court in LR 5.1 or, if type written, that the
brief does not contain more than 10 characters per inch of type. This document
was prepared in Times New Roman 14 point font.
/s/ Hayden Pace
Hayden Pace, Esq.Georgia Bar No. 558595
STOKES WAGNER HUNTMARETZ & TERRELL, ALC3593 Hemphill StreetAtlanta, GA 30337404.766.0076 (tel)404.521.4313 (fax)
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CERTIFICATE OF SERVICE
I hereby certify that on this day I electronically filed the foregoing
Defendants Onika Marajs And Pink Personality, LLCs Motion To Dismiss The
Amended Complaint Under Fed. R. Civ. P. 12(b)(6), Or For A More Definite
Statement Under Fed. R. Civ. P 12(e), If Any Claim Survives This Motion ToDismiss, together with the Declaration of Jonathan D. Davis, Esq. and supporting
memorandum of law with the Clerk of the Court using the CM/ECF system which
will automatically send e-mail notification of such filing to the following counsel
of record:
Andrae P. Reneau, Esq.
Christopher M. Chestnut, Esq.
/s/ Hayden Pace
Hayden Pace, Esq.
Georgia Bar No. 558595
STOKES WAGNER HUNT Local counsel for DefendantsMARETZ & TERRELL, ALC3593 Hemphill StreetAtlanta, GA 30337404.766.0076 (tel)
404.521.4313 (fax)
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERRENCE DAVIDSON,
Plaintiff,
vs.
ONIKA MARAJ, an individual,and PINK PERSONALITY, LLC,a Delaware limited liability company,
Defendants.
Case No.1:14-CV-00507-RLV
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS
MOTION TO DISMISS THE AMENDED COMPLAINT UNDER
RULE 12(b)(6), OR FOR A MORE DEFINITE STATEMENT UNDERRULE 12(e), IF ANY CLAIM SURVIVES THIS MOTION TO DISMISS
JONATHAN D. DAVIS, P.C.10 Rockefeller Plaza, Suite 1015
New York, New York 10020(212) 687-5464
and
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Defendants Onika Maraj and Pink Personality, LLC (Pink and with Ms.
Maraj, Defendants) move to dismiss the Amended Complaint1 under Fed. R.
Civ. P. 12(b)(6), or to obtain a more definite statement under Fed. R. Civ. P. 12(e)
for any claim that survives the dismissal motion.2
PRELIMINARY STATEMENT
Plaintiff Terrence Davidson is a hairstylist and claimed wig designer who
is upset because he lost his most famous client, Onika Maraj p/k/a Nicki Minaj, a
well-known musical artist. Plaintiff filed this lawsuit to insert himself into Ms.
Marajs business affairs and to force Defendants into a business venture with him.
This case is not about Ms. Marajs indisputable right to wear the wigs
Plaintiff claims he designed for her to wear. And Mr. Davidson does not claim
he was not paid for making those wigs for Ms. Maraj or that she must return them.
1 Plaintiff filed his initial complaint on February 21, 2014 (the OriginalComplaint), which Defendants moved to dismiss. Doc. No. 4. Rather thanoppose Defendants motion to dismiss the Original Complaint, Plaintiff filed the
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Instead he complains that Defendants misappropriated his wig designs and
used them without his permission.
Plaintiff alleges no enforceable contract between himself and Defendants
concerning any subject matter. He claims only that he and Ms. Maraj discussed
two potential collaborative ventures, one involving a wig line and the other a
reality TV show. Both collaborative ventures never went beyond discussions.
As of January 2013, Ms. Maraj stopped using Mr. Davidsons hairstyling
services. Now Plaintiff wants to stop Defendants from allegedly using the
commonplace hairstyles embodied in the wigs he allegedly designed and created
for Ms. Maraj. The wig designs cannot support any legal claim. They combine
essential and ordinary characteristics of any wig: one or more hair colors and a
hairstyle. Moreover, the only wigs Plaintiff challenges are for Halloween
costumes available at www.mypinkfriday.com, a site Plaintiff attributes to
Defendants. They are not serious wigs for a womans wardrobe.
Plaintiffs gripe with Ms. Maraj is that she allegedly deprived him of the
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enforceable contract, cannot bar Defendants from pursuing business relationships
without him.
Each claim should be dismissed under Rule 12(b)(6). If not, the Court
should order Plaintiff to provide a more definite statement because there are no
facts about Pinks conduct and the Amended Complaint uses the impermissibly
vague term Defendants to unreasonably obscure the conduct allegedly at issue.
BACKGROUND
Plaintiff is a hairstylist who designed wigs that Ms. Maraj, on occasion,
wore at events and appearances. Am. Compl. at 6, 10-22, 45. He alleges that
years ago, he created several pink wigs for Ms. Maraj to wear at the MTV
Network VMA pre-show. Id.at 11-12. The wig Ms. Maraj allegedly chose to
wear for the show combined the color pink with a bun hairstyle. Plaintiff calls this
wig the Pink Upper Bun Wig. Id. at 12. Ms. Maraj allegedly wore another
Davidson wig months later to perform at a radio stations Christmas concert, id.at
13-14, followed by other wigs for other public appearances. Id.at 15-22. All
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By November 2011, Ms. Marajs alleged brand manager, Al Branch,
supposedly began discussing various business ventures with Mr. Davidson for
Marajs brand-specific wigs[.] Id. at 23 (emphasis added). Plaintiff allegedly
told Mr. Branch that Plaintiff had a television contract on the table for a show
looking for the next top celebrity hairstylist. Id. at 24. Mr. Branch allegedly told
Plaintiff to hold off on the reality television show, and Mr. Branch and Ms.
Maraj allegedly promised Plaintiff that Plaintiff and Ms. Maraj would appear on a
reality show together. Id. Plaintiff claims that based on those alleged promises,
he declined to take the opportunity he was allegedly offered. Id.at 76.
Later in November, Plaintiffs alleged broker (Aaliyah Taylor), his
manager (Joseph Barrett), and Mr. Branch purportedly participated in a
conference call to discuss joint business ventures between Mr. Davidson and
[Ms.] Maraj, specifically, the creation of a wig line from Mr. Davidsons
designs and a reality TV show featuring Mr. Davidson and [Ms.] Maraj. Id. at
26 (emphasis added). He alleges that the parties agreed that they would
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In November, a representative from a hair company purportedly emailed a
full business proposal for the proposedwig line to Plaintiffs manager and Mr.
Branch. Id. at 29 (emphasis added). After Plaintiffs manager allegedly
informed him of this proposed wig deal, Plaintiff purportedly told Ms. Maraj
about it and announced that Mr. Branch should be contacting her soon . Id.at
30. Plaintiff fails to attach to his pleading the alleged wig deal or allege
whether Mr. Branch ever contacted Ms. Maraj. Plaintiff claims that months
passed, but his requests regarding the wig and reality TV business ventures to
Ms. Maraj and her team, went unanswered. Id.at 35-36.
In 2013, after Ms. Maraj stopped using Plaintiff as her hairstylist, Plaintiff
claims he discovered that [Ms.] Maraj took a number of his popular wig designs,
without his consent, and used them to start her own wig line. Id.at 37-38. He
further claims that wig styles he designed are being sold on numerous retail
websites, as well as [Ms.] Marajs website[.] Id.at 39. The wigs available on
the www.mypinkfriday.com website are sold under the tab: Halloween
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misappropriated and used by [Ms.] Maraj to design bottle tops for her fragrance
line. Id.at 41. Ms. Maraj is not alleged to have appeared in a reality hair show.
THE RULE 12(b)(6) LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a complaint must
contain sufficient factual matter, accepted as true, to state a claim [for] relief that
is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotingBell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). [A] plaintiffs obligation to
provide the grounds of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do. Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678.
Moreover, if general and conclusory allegations of a pleading contradict
documents in or appended to the pleading, including such materials as pictures or
photographs, then the documents themselves not the plaintiffs characterization
of them are controlling. SeeCrenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir.
2009). Furthermore, a complaint must demonstrate more than the mere
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it must allege enough fact[s] to raise a reasonable expectation that discovery will
reveal evidence [supporting the claim], Twombly, 550 U.S. at 556.
POINT I: THE AMENDED COMPLAINT SHOULD
BE DISMISSED BECAUSE THE WIGS ARE NOT NOVEL
Plaintiff claims Defendants should pay for their purported use of his wig
designs. But the wig designs Mr. Davidson claims to own are not protectable
and cannot be owned. If he had a property right in the omnipresent hairstyles at
issue, e.g., a bun, a pixie cut, or a curly bob, he would not just have a claim against
Defendants, but businesses that make or sell similar wigs. Plaintiffs claims fail
because he cannot pursue any claimfor the use of non-novel ideas.
A.
Plaintiffs Non-Novel Wig Designs
Require His State Law Claims To Be Dismissed
Non-novel ideas do not constitute protectable property interests under
Georgia law. Burgess v. Coca-Cola Co., 536 S.E.2d 764, 769 (Ga. Ct. App. 2000).
They are inadequate as consideration, and when one submits [such] an idea to
another, no promise to pay for its use may be implied, and no asserted agreement
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enrichment claims fail because non-novel ideas confer no benefit. Id.; see also
Morton B. Katz & Assocs., Ltd. v. Arnold, 333 S.E.2d 115, 117 (Ga. Ct. App.
1985). Similarly, a promissory estoppel claim cannot be based on the
unauthorized use of anothers non[-]novel idea because its use would not result
in an injustice, a necessary element in a promissory estoppel claim. Burgess, 536
S.E.2d at 769.
Moreover, [l]ack of novelty in an idea is fatal to anycause of action for its
unlawful use. Burgess, 536 S.E.2d at 769 (emphasis in original) (internal
quotations omitted). Public policy favors this bright line because business, trade
and the professions [must] be free from encumbrance with alleged property rights
in ideas or concepts unless such ideas or concepts are truly unique and original.
Morton B. Katz & Assocs., Ltd., 333 S.E.2d at 117 (emphasis added).
Under Georgia law, to be novel the concept must be peculiar and not
generally available or known in the trade. To beprotected, an idea must possess
genuine novelty and invention, which it cannot have if it merely is an adaptation of
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already known and in use is put to a new use. Morton B. Katz & Assocs., Ltd.,
333 S.E.2d at 117 (citation and internal quotations omitted).
Here, a commonsense application of the novelty standard to Plaintiffs wigs
or to the concept that one could assert a property interest in a hairstyle requires
the conclusion that Plaintiffs wigs are not novel. Applying one or more colors to
a hairstyle is not novel. Women and men around the world have applied color to
their hair for centuries. Applying any color to a wig or in combination with other
colors is not novel, even if it had never been done before, because, at best, it would
be an adaptation of existing knowledge[.] Burgess,536 S.E.2d at 768.
Walking around any city or neighborhood, or even ones office or
household, reveals people sporting different hairstyles. Hairstyles do not belong to
anyone and cannot be monopolized. Using them requires no permission or license.
Plaintiff has no greater right to control the use of his alleged hairstyles than could
The Beatles have prevented the worlds younger generation from adopting the one
they wore. As a matter of law, Plaintiff cannot own a hairstyle.
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Plaintiff cannot cause confusing or deceive because ideas in the public domain
may be used with impunity and thus do not require attribution. Murray v. Natl
Broad. Co., Inc., 844 F.2d 988, 995 (2d Cir. 1988); see also Wal-Mart Stores, Inc.
v. Samara Bros., Inc., 529 U.S. 205, 210 (2000) (no confusion without
distinctiveness); Point IV infra.
POINT II: NO QUASI-CONTRACTUAL CLAIMS ARE STATED
Instead of alleging any written or oral contract, the Amended Complaint
includes deficiently pled claims for quantum meruit(Count I), unjust enrichment
(Count II), and promissory estoppel (Count III) that must be dismissed.3
A. No Claim Is Stated For Quantum MeruitOr Unjust Enrichment
Plaintiff cannot maintain a quantum meruit or unjust enrichment claim
because he has not plausibly alleged that he provided valuable services to
Defendants or conferred any benefit on them for which he was not paid.
The essential elements of a claim for quantum meruit under Georgia law
are (1) the performance of valuable services; (2) accepted by the recipient or at
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the provider expected compensation at the time services were rendered. Stuart v.
Resurgens Risk Mgmt., Inc., No. 1:11-CV-04251-RWS, 2013 WL 2903571, at *7
(N.D. Ga. June 12, 2013) (internal quotations omitted).
[U]nder Georgia law, an unjust enrichment claim requires the plaintiff to
establish : (1) that the plaintiff conferred a benefit on the defendant and (2) that
equity requires the defendant to compensate the plaintiff for this benefit.
JCarpc, LLC v. Wilkins, 545 F. Supp. 2d 1330, 1340 (N.D. Ga. 2008) (internal
quotations omitted).
The quantum meruit and unjust enrichment claims against Pink must be
dismissed because Plaintiff does not allege that he provided anyservices to Pink or
conferred any benefit on Pink, or that Pink accepted any services from Plaintiff.
Plaintiff claims that he had a business relationship with Ms. Maraj, not with
Pink. Am. Compl. at 8. The wigs he allegedly created were presented to Ms.
Maraj, not to Pink. Id.at 10. Indeed, Plaintiff alleges that he created multiple
wigs for [Ms.] Maraj. Id.at 11, 13, 15, 17, 19, 21. Absent from the Amended
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to Pink.4 Having received nothing and accepted nothing from Plaintiff, there is no
basis for equity to require Pink to compensate Plaintiff for anything.
The quantum meruitand unjust enrichment claims are also deficiently pled
against Ms. Maraj because Plaintiff has not alleged any facts that her alleged
failure to compensate him for any purported commercial use of his wig designs is
unjust or inequitable. Mr. Davidson was Ms. Marajs hairstylist. He provided
hairstyling services for which he does not claim he is owed compensation. Instead,
he alleges that to the extent [he] received any compensation for his work, such
compensation was solely for his services to provide a personal hair style for a
specific celebrity appearanceby [Ms.] Maraj on a specific date. Am. Compl. at
60 (emphasis added).
Now, in hindsight, Plaintiff apparently wants to remedy what he believes to
be inadequate compensation for his hairstyling services. But equity has no role
here. If Ms. Maraj found another use for Plaintiffs non-novel wigs and wig
designs, equity does not require her to pay Plaintiff again for the services he was
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Holcomb, 483 S.E.2d 624, 626 (Ga. Ct. App. 1997) (stating, unjust enrichment
prevents party from avoid[ing] payment for the value received). Quasi-contracts
are not tools to extract more money from a defendant when the compensation a
plaintiff expected to receive, and did receive, is not enough.
5
See generally
Rodriguez v. Vision Correction Group, Inc., 580 S.E.2d 266 (Ga. Ct. App. 2003)
(affirming dismissal of quasi-contractual claims where employee was already
compensated).
B. No Claim Is Stated For Promissory Estoppel
To state a promissory estoppel claim a plaintiff must allege that: (1)
defendant made a promise to the plaintiff; (2) defendant should have expected that
plaintiff would rely on the promise; (3) the plaintiff relied on such promise to his
detriment; and (4) injustice can be avoided only by enforcing the promise. Ga.
Code Ann. 13-3-44(a).
Promissory estoppel requires some enforceable promise, that is a
manifestation of an intention to act in a specified way that justifies the
g
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Warren Engg, Inc., 804 F. Supp. 1540, 1544-45 (N.D. Ga. 1992); Mooney v.
Mooney, 538 S.E.2d 864, 868 (Ga. Ct. App. 2001); see also Joseph M. Still Burn
Centers, Inc. v. Amfed Natl Ins. Co., 702 F. Supp. 2d 1371, 1381 (S.D. Ga. 2010).
The promise must be something approaching a meeting of the minds or a mutual
understanding. If there is no promise to be enforced, then promissory estoppel
will not apply. Foley Co., 804 F. Supp. at 1545.
The promise must be communicated with sufficient particularity to enforce
the commitment, Mooney, 538 S.E.2d at 868, because promissory estoppel does
not apply to vague, indefinite promisesor to promises of uncertain duration. Ga.
Invs. Intl., Inc. v. Branch Banking & Trust Co., 700 S.E.2d 662, 664-65 (Ga. Ct.
App. 2010) (holding promise of future loan too vague when only duration term
alleged); see alsoMariner Healthcare, Inc. v. Foster, 634 S.E.2d 162, 168 (Ga. Ct.
App. 2006).
Important here, a promise to work something out in the future cannot
support a promissory estoppel claim, and neither can a promise to give ones
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indefinite period because parties did not define the meaning of continuing to
negotiate).
In addition, a plaintiffs reliance on the promise must be reasonable.
Discrete Wireless, Inc. v. Coleman Tech., Inc., 422 F. Appx 777, 782-83 (11th
Cir. 2011) (citing W.R. Grace & Co.-Conn. v. Taco Tico Acquisition Corp., 454
S.E.2d 789, 791 (Ga. Ct. App. 1995)). A partys reliance is unreasonable when,
for example, the promise is too vague to be enforced, or when the promise is too
substantial to not have been reduced to writing. Johnson v. Univ. Health Servs.,
Inc., 161 F.3d 1334, 1340-41 (11th Cir. 1998);Reindel v. Mobile Content Network
Co., LLC, 652 F. Supp. 2d 1278, 1291 (N.D. Ga. 2009) (holding reliance upon oral
promise to receive 5% of companys stock, an extraordinary transaction, was
unreasonable as a matter of law).
Here, Plaintiffs promissory estoppel claim must be dismissed against Pink
because he has not alleged Pink promised him anything. Instead, Plaintiff alleges
that [Ms.] Maraj [made] promises topursuea wig venture and a reality TV show
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made by Ms. Maraj). Because Pink made no promises to Plaintiff, Plaintiff could
not and did not rely on any promise from Pink; thus there is no promise to enforce.
But most importantly, Plaintiff has failed to plead any enforceable promise.
The alleged promises in the Amended Complaint are vague, indefinite, and lack
particularity. Ms. Marajs alleged promise to appear on a reality TV show with
Plaintiff is a prediction about the future that Ms. Maraj is incapable of controlling.
Whether to create a TV show involving Ms. Maraj and Plaintiff rests with
television and network executives, not with Ms. Maraj. And not only is that
promise for an uncertain duration, it contains no information about the show, its
length, location, format (competition/elimination or documentary), concept,
producer, sponsor, or even what network or channel it would appear on. Also
absent is any detail about creative control, the roles for Ms. Maraj and Plaintiff,
and the money necessary to obtain their involvement.6
The alleged promise to pursue a wig ventureis too vague and indefinite to
trigger promissory estoppel. The length of such pursuit is indefinite and there is no
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There are no details regarding the nature of the wig venture. Also absent from the
Amended Complaint is any detail regarding whether the wigs would be for
everyday wear or for use as a novelty item; whether the wigs would be cheap or
expensive; whether the wigs would be made of human hair or synthetic; how the
wigs would be marketed, if at all; how and where the wigs would be manufactured;
who would bear the risk of failure; and how any profits would be divided.
Because there is no certain promise in the Amended Complaint,
Plaintiff has alleged nothing upon which he could have reasonably relied.
POINT III: NO BUSINESS PRACTICES ACT CLAIM IS STATED
The Georgia Fair Business Practices Act (the FBPA) targets deceptive
practices that harm the general consuming public. It forbids a non-consumer from
challenging practices that could notpossibly mislead him, but maymislead others,
and it forbids claims from being brought in a representative capacity. Plaintiffs
FBPA claim must be dismissed because there is no allegation that he purchased a
wig from Defendants, and even if he had, he could not have been misled by any
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elements: a violation of the act, causation, and injury. Williams v. Jet One Jets,
Inc., 755 F. Supp. 2d 1281, 1289 (N.D. Ga. 2010) (citing Tiismann v. Linda Martin
Homes Corp., 637 S.E.2d 14, 17 (Ga. 2006)). To be deceptive, a business practice
must have the tendency or capacity to deceive. Wright v. Safari Club Intl, Inc.,
745 S.E.2d 730, 734 (Ga. Ct. App. 2013) (quoting Tiismann, 637 S.E.2d at 17).
The FBPA incorporates a reliance requirement within the causation element.
Lynas v. Williams, 454 S.E.2d 570, 574 (Ga. Ct. App. 1995). The absence of
justifiable reliance requires an FBPA claim to be dismissed. Id. Thus, [w]hen the
alleged FBPA violation is a misrepresentation, the consumer must show that he
exercised due diligence to ascertain the falsity of the statement [because]
[o]therwise [] the cause of the injury is the consumers lack of proper diligence,
rather than the alleged FBPA violation. Tiismann, 637 S.E.2d at 18; Agnew v.
Great Atl. & Pac. Tea Co., 502 S.E.2d 735, 736 (Ga. Ct. App. 1998).
Moreover, non-consumers do not have an FBPA claim when they allege an
injury from a publicly disseminated misrepresentation. Friedlander v. PDK Labs,
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practice relates to representations made by his competitor in the marketing of
competing products to the general consuming public, he lacks standing.
Friedlander, 465 S.E.2d at 671. And the claim may only be brought in a
plaintiffs capacity as an individual member of the consuming public[.] Id.
(quotingZeeman v. Black, 273 S.E.2d 910, 914 (Ga. Ct. App. 1980)).
Here, Plaintiff has failed to state a plausible claim under the FBPA. His
claim is no different than the one barred in Friedlander. Plaintiff is a non-
consumer complaining about business practices incapable of deceiving him, and
incapable of inducing his reliance. Plaintiff does not believe the purported
misstatements and omissions about his contribution to the designs on
www.mypinkfriday.comor elsewhere. He believes them to be false.7
POINT IV: PLAINTIFF HAS NOT STATED A TRADE DRESS CLAIM
7 Although Friedlanderconcerned a claim against a competitor, the case turnson the fact that plaintiff was a non-consumer that claimed an injury the FBPA wasnot meant to address. The Court made this point clear: Of course, if a business,
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The same standards govern Plaintiffs trade dress claims under the Lanham
Act and the Georgia Uniform Deceptive Trade Practices Act (GUDTPA). Both
claims fail because Plaintiff has not adequately pled and cannot plead that his
wig designs are distinctive and that consumers identify those designs with him.
A.Standards Governing Trade Dress
Claims Under The Lanham Act And GUDTPA
The term trade dress refers to the appearance of a product when that
appearance is used to identify the producer. Dippin Dots, Inc. v. Frosty Bites
Distribution, 369 F.3d 1197, 1202 (11th Cir. 2004). To bring a successful trade
dress infringement claim under the Lanham Act, a plaintiff must prove that (1) the
defendants product is confusingly similar to its product; (2) the similar features of
the two products are primarily non-functional; and (3) the plaintiffs product is
distinctive. Millers Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702
F.3d 1312, 1322 (11th Cir. 2012).8
8 The Lanham Act does not remedy failing or omitting to give a person credit.
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To adequately plead distinctiveness, the plaintiff must articulate the
specific elements which comprise its distinct dress. Heller Inc. v. Design Within
Reach, Inc., No. 09 Civ. 1909 (JGK), 2009 WL 2486054, at *6 (S.D.N.Y. Aug. 14,
2009) (citation and internal quotations omitted). A plaintiff must describe not just
which features are distinctive, but also how they are distinctive. Id.(citation and
internal quotations omitted). Merely laudatory descriptions that lack specificity
fail to indicate what unique combination of features makes the trade dress ...
likely to be perceived by consumers as bearing the stamp of their maker. Id.
(quotingLandscape Forms, 113 F.3d at 381-82); see also Shevy Custom Wigs, Inc.
v. Aggie Wigs, No. 06 CV 1657, 2006 WL 3335008, at *5 (E.D.N.Y. Nov. 17,
2006) (sweeping descriptions ... in fact denote categories of features, not the
features themselves). Attaching product images to a complaint is insufficient to
allege distinctiveness or the scope of the claimed trade dress. Natl Lighting Co. v.
Bridge Metal Indus., LLC, 601 F. Supp. 2d 556, 562-63 (S.D.N.Y. 2009).
Trade dress can be distinctive if it is inherently distinctive or if it acquires
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consumers know most unusual [] designs [are] intended not to identify the
source, but to render the product itself more useful or more appealing); Coach
House Restaurant, Inc. v. Coach & Six Restaurants, Inc., 934 F.2d 1551, 1560
(11th Cir.1991) (secondary meaning factors).
When a trade dress infringement claim is brought under GUDTPA, Georgia
courts analyze the claim using the Lanham Act standard. Optimum Techs., Inc. v.
Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1239 (11th Cir. 2007); Brown
Bark II, L.P. v. Dixie Mills, LLC, 732 F. Supp. 2d 1353, 1359-60 (N.D. Ga. 2010).
B.Plaintiff Has Not Pled A Trade Dress Claim
Though Plaintiff describes the various wigs he allegedly created and styled
for Ms. Maraj, he has not pled a trade dress claim. The allegation that Plaintiffs
wigs are inherently distinctive, Am. Compl. at 101, is a conclusory and a
laudatory statement insufficient to state a trade dress claim. In addition, none of
the descriptions or photos in the Amended Complaint demonstrate or explain how
the wigs are intrinsically linked to Plaintiff in the minds of consumers. SeeNatl
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features as Plaintiffs designs. See Heller Inc., 2009 WL 2486054, at *6; Shevy
Custom Wigs, Inc., 2006 WL 3335008, at *5. Again, Plaintiffs legal conclusions
are inadequate. Am. Compl. at 109.
As the images reveal in the Amended Complaint, the wig designs allegedly
worn by Ms. Maraj, see Am. Compl. at 12, 14, 16, 18, 22, do not by their
intrinsic nature serve to identify a particular source of a product. See Millers
Ale House, 702 F.3d at 1322 (citation and internal quotation omitted). Merely
stating that the wig designs are unique, unusual and unexpected, Am. Compl. at
101, or that the designs are capable of creating a commercial impression, id.at
115, does not make it so.9
Wigs are functional fashion items that may be copied. Plaintiffs Lanham
Act and GUDTPA claims must be dismissed.
POINT V: NO LITIGATION EXPENSES CLAIM EXISTS
The Amended Complaint purports to plead a claim for Litigation
Expenses under Ga. Code Ann. 13-6-11. Litigation expenses are recoverable
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under 13-6-11 only when the plaintiff has an underlying claim. Bouboulis v.
Scottsdale Ins. Co., 860 F. Supp. 2d 1364, 1381 (N.D. Ga. 2012) (citing Gilmour v.
Am. Natl Red Cross,385 F.3d 1318, 1324 (11th Cir. 2004)).
Because Plaintiff has not pled any viable claim against Defendants, he
cannot recover any of his litigation expenses under 13-6-11. Even if Plaintiff
managed to allege a claim, he has not stated a claim for litigation expenses under
13-6-11 because he alleges only legal conclusions. Am. Comp. at 148. This
claim should be dismissed.
POINT VI: IF ANY CLAIM SURVIVES THIS MOTION, THEN
A MORE DEFINITE STATEMENT IS NECESSARY
The Amended Complaint alleges no facts supporting Plaintiffs decision to
name Pink as a defendant. After identifying Pink as a party, Plaintiff never
mentions Pink again. And throughout the pleading, Plaintiff cryptically refers to
Defendants or worse yet to Defendant with no elaboration.
When a complaint against multiple defendants alleges claims that are not
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26, 2007); Fed. R. Civ. P. 12(e). Defendants must speculate about which
allegations are intended to address their respective conduct. If the pleading is not
dismissed, Plaintiff should be ordered to identify the conduct pertaining to each
defendant.
CONCLUSION
For all the foregoing reasons, Defendants respectfully request that the Court
dismiss the Amended Complaint in its entirety.
Dated: This 22ndday of July, 2014
Respectfully submitted,
JONATHAN D. DAVIS, P.C.
By: /s/ Jonathan D. DavisJonathan D. Davis, Esq.(admittedpro hac vice)10 Rockefeller Plaza, Suite 1015
New York, New York 10020(212) 687-5464STOKES WAGNER HUNT
MARETZ & TERRELL, ALC
B / / H d P
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LOCAL RULE 7.1(D) CERTIFICATION
By signature below, counsel certifies that the foregoing pleading was
prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1C.
CERTIFICATE OF SERVICE
I hereby certify that on this day I electronically filed the foregoing
Memorandum of Law in Support of Defendants Motion to Dismiss the Amended
Complaint under Rule 12(b)(6), or for a more definite statement Under Rule 12(e)
if any Claim Survives this Motion to Dismisswith the Clerk of the Court using the
CM/ECF system which will automatically send e-mail notification of such filing to
the following counsel of record:
Andrae P. Reneau, Esq.
Christopher M. Chestnut, Esq.
/s/ Hayden PaceHayden PaceGeorgia Bar No. 558595
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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERRENCE DAVIDSON,
Plaintiff,
vs.
ONIKA MARAJ, an individual,and PINK PERSONALITY, LLC,a Delaware limited liability company,
Defendants.
Case No.1:14-CV-00507-RLV
DECLARATION OF JONATHAN D. DAVIS, ESQ.
Pursuant to 28 U.S.C. 1746, Jonathan D. Davis, hereby declares as
follows:
1. I am over eighteen years of age and competent to make this Declaration.
I have personal knowledge of the facts stated herein.
2.
I am the sole shareholder of Jonathan D. Davis, P.C., attorneys for
D f d t O ik M j d Pi k P lit LLC i th b ti d ti
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4.
Attached as Exhibit A is a copy of the Amended Complaint, filed on June
5, 2014 (ECF No. 14).
5. Attached as Exhibit B is a copy of a screenshot of the Halloween
Costumes page of the www.mypinkfriday.com online store, available at
http://nickiminaj.shop.bravadousa.com/Dept.aspx?cp=56249_58072 (last accessed
on July 21, 2014).
I declare under penalty of perjury that the foregoing is true and correct.
Executed in New York, New York, on this 22ndday of July 2014.
s/ Jonathan D. DavisJONATHAN D. DAVIS, ESQ.
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EXHIBIT A
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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TERRENCE DAVIDSON,
Plaintiff,
v.
ONIKA MARAJ, an individual,and PINK PERSONALITY, LLC,a Delaware limited liability company,
Defendants.
)))
))))))
))
Civil Action
File No: 1:14-cv-00507-RLV
DEMAND FOR JURY TRIAL
FIRST AMENDED COMPLAINT
COMES NOW Plaintiff, TERRENCE DAVIDSON, by and through his
undersigned counsel, and hereby files this First Amended Complaint against the
Defendants, ONIKA MARAJ and PINK PERSONALITY, LLC, and alleges as
follows:
PARTIES, JURISDICTION & VENUE
1.
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2.
Upon information and belief, Defendant Onika Maraj (Maraj) is a resident
of the State of California. At all times material hereto, Defendant Maraj, who is
known by her stage name Nicki Minaj, transacted and continues to transact
business in Georgia and specifically in this judicial district. Defendant Maraj is
subject to personal jurisdiction of this Court under Georgias Long Arm Statute
(O.C.G.A. 9-10-91).
3.
Upon information and belief, Defendant Pink Personality, LLC (Pink
Personality) is a Delaware limited liability company with its principal place of
business in Los Angeles, California. At all times material hereto, Defendant Pink
Personality transacted and continues to transact business in Georgia and
specifically in this judicial district. Defendant Pink Personality is subject to
personal jurisdiction of this Court under Georgias Long Arm Statute (O.C.G.A.
9-10-91).
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5.
This Court has subject matter jurisdiction over this matter pursuant to 28
U.S.C. 1332, as the parties are completely diverse in citizenship and the amount
in controversy exceeds $75,000.
FACTS
I. The Beginning of Mr. Davidsons Business Relationship with Maraj.
6.
In or around January 2010, Mr. Davidson entered into a business
relationship with Maraj to serve as her hair stylist. Specifically, over the course of
the next few years, Mr. Davidson designed a number of wigs, presented them to
Maraj, and Maraj would then choose her preferred wig design for a particular
event. Maraj was to use the wigs for her personal use only.
7.
Prior to working with Maraj, Mr. Davidson worked with numerous
renowned entertainers that had global brands including Patti Labelle and Jennifer
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8.
In the years following the commencement Mr. Davidsons business
relationship with Maraj, his wig designs aided greatly in developing the
appearance that Nicki Minaj is now widely known for. Indeed, Nicki Minaj is
arguably known just as well for her use of Davidsons wigs as she is her music.
9.
The wig designs that Mr. Davidson presented to Maraj, were fresh, unique
and highly distinguishable.
II. Specific Wigs Created by Mr. Davidson That Were Worn by Miraj
at Certain High Profile Events.
10.
As set forth above, Mr. Davidson created countless fresh, unique, innovative
and fashion forward wigs from which Maraj could choose a style depending on the
event.
11.
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12.
Of these pink wigs designed by Mr. Davidson, Maraj chose a pink wig with
an upper bun (the Pink Upper Bun Wig):
(Available at http://celebsalon.sheknows.com/long-hairstyles/nicki-minajs-neon-pink-hairstyle-at-the-vmas/)
13.
In or around December 2010, Mr. Davidson created several wigs for Maraj
to wear during a performance for the New York radio station, Hot 97s Christmas
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14.
Of these wigs designed by Mr. Davidson, Maraj chose a wig with patterns
and colors of a fox fur (the Fox Fur Wig):
(Available at http://urbanislandz.com/2010/12/28/nicki-minaj-rocks-the-mic-in-leopard-print-on-christmas-day-photo/).
15.
In or around January 2011, Mr. Davidson created several new pink wigs for
Maraj to wear for press appearances in London.
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(Available at http://foxync.com/1919541/fab-or-fug-nicki-minajs-cotton-candy-hi-
top-wig-photos)
17.
In or around April 2011, Mr. Davidson created several wigs for Maraj to
wear for her music video for the song Super Bass.
18.
Of these wigs designed by Mr. Davidson, Maraj chose a split two-tone wig
(the Super Bass Wig):
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(Available at http://nickiminajcostume.blogspot.com/2013/01/get-nicki-minajs-most-sought-after-wigs.html)
19.
In or around September 2011, Mr. Davidson created several wigs for Maraj
to wear during The Mercedes Benz Fashion Week in New York City.
20.
For this event, Maraj chose the half blonde half pink wig designed by Mr.
Davidson (the Half Blonde-Half Pink Wig):
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(Available at http://www.peoplestylewatch.com/people/stylewatch/package/gallery/0,,20222041_20527304_21052338,00.html)
21.
In or around November 2011, Mr. Davidson created several pink wigs for
Maraj to wear during a performance for a Victorias Secret special aired on CBS.
22.
Maraj chose the pink curls wig (the VS Wig) designed by Mr. Davidson
for her performance:
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(Available at http://urbanislandz.com/2011/11/30/nicki-minaj-performs-live-at-victorias-secret-fashion-show-video/nicki-minaj-victorias-secret-2/).
III. Various Business Opportunities Arise for Mr. Davidson as a Result
of his Fresh and Unique Wig Designs.
23.
As Nicki Minaj and her associated wig hair styles became more popular,
by November 2011, Al Branch, the brand manager for Maraj, began discussing
various business ventures with Mr. Davidson for Marajs brand-specific wigs that
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24.
In or around November 2011, Mr. Davidson informed Al Branch that he had
a television contract on the table for a reality television show searching for the next
top celebrity hairstylist.
25.
Nevertheless, Al Branch, as an agent of Maraj, told Mr. Davidson to hold
off on the reality television. Al Branch and Maraj promised that Mr. Davidson
and Maraj would appear on a reality show together.
26.
On or around November 9, 2011, there was a conference call, which
included Al Branch, Aaliyah Taylor (Mr. Davidsons broker), and Joseph Barrett
(Davidsons manager), to discuss joint business ventures between Mr. Davidson
and Maraj, and specifically, the creation of a wig line from Mr. Davidsons designs
and a reality TV show featuring Mr. Davidson and Maraj. During this call, the
parties agreed that they would continue to pursue the joint wig and reality TV
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27.
Thus, on or around November 10, 2011, Mr. Davidson met with certain
television executives to discuss the hair reality television show involving Mr.
Davidson and Maraj.
28.
Following the meeting, the television executives requested certain footage
mentioned during their meeting and Mr. Davidson subsequently sent the footage
to them.
29.
Additionally, in regards to the wig venture, on or around November 21,
2011, a representative from a hair company emailed Joseph Barrett and Al Branch
a full business proposal for the proposed wig line, which included full profit and
loss and a budget overview for the joint wig venture between Davidson and Maraj.
30.
On or about November 21, 2011, Barrett informed Mr. Davidson of the
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IV.
Maraj and her Agents Shun Mr. Davidson and Take Active StepsToward Hurting his Career.
31.
By the end of 2011, many promising business ventures were on the table for
Mr. Davidson and Maraj to pursue together. Nevertheless, beginning in 2012,
Maraj and her agents became mum about the business ventures and took active
steps to isolate Mr. Davidson and preclude him from the notoriety he deserved for
his wig designs.
32.
For example, in January 2012, Joseph Barretts office emailed The New
York Times Newspaper after reading an article in the newspaper written about
Marajs wigs.
33.
To Mr. Barrett and Mr. Davidsons surprise, on or about January 21, 2012,
the writer of the article informed Mr. Barretts office that the newspaper had
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34.
Mr. Davidson was not informed about this interview, however, and thus,
neither he nor his representatives declined the interview.
35.
Many months passed and neither Maraj nor her team responded to Mr.
Davidsons requests regarding the wig and reality TV business ventures.
36.
Indeed, in or around September of 2012, Al Branch emailed Mr. Davidson
asking for his hair care expertise about a possible hair care business deal. Mr.
Davidson asked Mr. Branch about their previous wig deal proposal, but again, did
not receive a response.
V. Marajs Unlawful Use of Mr. Davidsons Wig Designs is Discovered.
37.
In January 2013, Mr. Davidson ceased working as Marajs hair stylist.
38.
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39.
Indeed, the following wig styles designed by Mr. Davidson are now being
sold on numerous retail websites, as well as Marajs website,
www.mypinkfriday.com:
The Pink Upper Bun Wig
(Available at http://www.target.com/p/nicki-minaj-pink-bun-wig/-/A-14715501?ref=tgt_adv_XSG10001&AFID=Google_PLA_df&LNM=%7C14715501&CPNG=Seasonal&kpid=14715501&LID=PA&ci_src=17588969&ci
_sku=14715501&gclid=CN68-fGd2bwCFQ1o7AodZBgAe)
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The Fox Fur Wig
(Available at http://www.halloweencostumes.com/nicki-minaj-leopard-look-wig.html)
The Pink High Top Wig
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The Super Bass Wig
(Available at http://www.spirithalloween.com/product/rap-star-wig/)
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The VS Wig
(Available at http://nickiminaj.shop.bravadousa.com/Product.aspx?cp=56249_58072&pc=BGAMNM16).
40.
Thus, without Mr. Davidsons knowledge and consent, Maraj surreptitiously
cut Mr. Davidson out of their wig venture and misappropriated his wig designs to
pursue the wig venture on their own.
41.
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42.
Indeed, the Davidson designed wig bottle tops are the focal point of Marajs
fragrance line:
(available at http://style.mtv.com/2013/07/29/nicki-minaj-minajesty/).
43.
Thus, without Mr. Davidsons knowledge and consent, Maraj surreptitiously
used Mr. Davidsons wigs and wig designs to further her fragrance venture.
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COUNT I
QUANTUM MERUIT
(Breach of Implied Contract)
44.
Plaintiff realleges the allegations of Paragraphs 1 through 43 as if fully set
forth herein.
45.
Defendants understood and agreed that Maraj could only use Plaintiffs wig
designs for Marajs personal use and attire for her appearances at various
entertainment and publicity events, consistent with Marajs use of Plaintiffs wigs
since 2010.
46.
To the extent Mr. Davidsons wigs and wig designs were used by
Defendants other than for Marajs personal use for appearances, Mr. Davidson
expected to be compensated for such additional uses. Such expectation of
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operated since 2010, Defendants wrongfully misappropriated Plaintiffs wig
designs and wigs, and entered into contracts with third parties for the sole
commercial purpose of profit and self-dealing.
48.
More specifically, Defendants have sold Mr. Davidsons wigs on numerous
retail websites, in addition to Marajs website, www.mypinkfriday.com, without
the knowledge and consent of Mr. Davidson.
49.
Defendants also unilaterally misappropriated Mr. Davidsons wigs and wig
designs and used them to pursue a fragrance venture.
50.
Without the knowledge and consent of Mr. Davidson, Mr. Davidsons wig
designs are prominently featured on the bottles used for Marajs fragrance line.
51.
Defendants knew the popularity, demand for and commercial value of Mr.
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her commercial appeal than a pink wig designed by Davidson and subsequently
used as a centerpiece on one of Marajs fragrance bottles.
52.
Thus, fully aware of the commercial value of Mr. Davidsons wigs and wig
designs, following Marajs personal use of Mr. Davidsons wigs at specific
appearances, Defendants did not return the wigs, accepted them into their
permanent possession and subsequently used Mr. Davidsons wigs and wig designs
for the sole commercial purpose of profit and self-dealing.
53.
Mr. Davidsons prior discussions with Defendants and/or their agents about
various wig deals and other ventures in which he would receive compensation
made clear that Mr. Davidson expected to be compensated for any commercial use
of his wigs and wig designs. Thus, Defendants were aware of Mr. Davidsons
expectation of compensation from them for any commercial use by them of his
wigs and wig designs.
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55.
Nevertheless, Mr. Davidson has not received any compensation for
Defendants commercial use of his wigs and wig designs.
56.
Plaintiff is entitled to damages for the reasonable value of his services and/or
property rendered to Defendants, in an amount to be determined by the enlightened
conscience of a jury.
COUNT II
UNJUST ENRICHMENT
57.
Plaintiff realleges the allegations of Paragraphs 1 through 43 as if fully set
forth herein.
58.
To the extent there is no enforceable contract between Plaintiff and
Defendants, Plaintiff asserts his claim against Defendants for unjust enrichment as
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innovative and fashion forward wigs solely for her celebrity appearances
throughout the world.
60.
Mr. Davidson and Defendants understood that the wigs designed by Mr.
Davidson and used by Maraj were solely for Marajs personal use during specific
celebrity appearances. Thus, to the extent Mr. Davidson received any
compensation from Defendants for his work, such compensation was solely for his
services to provide a personal hair style for a specific celebrity appearance by
Maraj on a specific date.
61.
Mr. Davidson neither agreed to nor authorized Defendants use of the wigs
designed by him outside of Marajs personal use of the wig during a specific
celebrity appearance. Mr. Davidson certainly did not authorize Defendants to
unilaterally use the wigs designed by him for Defendants commercial financial
advantage.
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in addition to Marajs website, www.mypinkfriday.com, without the knowledge
and consent of Mr. Davidson.
63.
Defendants also unilaterally misappropriated Mr. Davidsons wig designs
and used them to pursue a fragrance venture.
64.
Without the knowledge and consent of Mr. Davidson, Mr. Davidsons wig
designs are prominently featured on the bottles used for Marajs fragrance line.
65.
Defendants knew the demand for and commercial value of Mr. Davidsons
unique, innovative and fashion forward wigs. Indeed, Defendants were aware of
various hair companies demand for Mr. Davidsons wigs for a wig line.
Moreover, in regards to the wigs used for her fragrance line, Maraj stated in
numerous interviews that there is nothing more synonymous with her commercial
appeal than a pink wig designed by Davidson and subsequently used as a
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Defendants did not return the wigs, accepted them into their permanent possession
and subsequently used Mr. Davidsons wigs for the sole commercial purpose of
profit and self-dealing, to the exclusion of Mr. Davidson.
67.
Mr. Davidsons prior discussions with Defendants and/or their agents about
various wig deals and other ventures in which he would receive compensation
made clear that Mr. Davidson expected to be compensated for any commercial use
of his wigs and wig designs. In fact, the Defendants fully expected to compensate
Mr. Davidson for any and all commercial uses of his wigs and wig designs. Thus,
Defendants were aware of Mr. Davidsons expectation of compensation from them
for any commercial use by them of his wigs and wig designs.
68.
Nevertheless, Mr. Davidson has not received any compensation or profits for
Defendants commercial use of his wigs and wig designs, yet Defendants have
unfairly profited from same.
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70.
Plaintiff is entitled to damages for the benefit conferred upon Defendants as
a result of their use, duplication, marketing and sale of Mr. Davidsons wigs and
wig designs in the consumer marketplace, in an amount to be determined by the
enlightened conscience of a jury.
COUNT III
PROMISSORY ESTOPPEL
71.
Plaintiff realleges the allegations of Paragraphs 1 through 43 as if fully set
forth herein.
72.
As the wig hair styles created by Terrence Davidson became more popular,
various television and wig deals were being presented to Mr. Davidson.
73.
Similarly, by November 2011, Al Branch, an agent for Maraj, began
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74.
In or around November 2011, Mr. Davidson informed Al Branch that he had
a television contract on the table for a reality television show searching for the next
top celebrity hairstylist.
75.
Al Branch, as an agent of Maraj, told Mr. Davidson to hold off on the
reality television. Al Branch and Maraj promised that Mr. Davidson and Maraj
would appear on a reality show together.
76.
Thus, reasonably relying on representations made by and/or on behalf of
Maraj, Mr. Davidson declined the opportunity to appear on a reality television
show individually so he and Maraj could appear on a reality television show
together.
77.
In furtherance of Marajs promise to appear on a TV show with Mr.
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78.
In addition to Marajs promise to appear on a reality TV show with Mr.
Davidson, in November 2011, Maraj also promised to pursue a wig venture with
Mr. Davidson.
79.
Although there was much demand for Mr. Davidsons wigs and wig designs,
reasonably relying on the promise made by Maraj to pursue a joint wig venture,
Mr. Davidson no longer pursued any wig deals on his own.
80.
In regards to the promised wig venture, on or around November 21, 2011, a
representative from a hair company emailed Joseph Barrett and Al Branch a full
business proposal for the proposed wig line, which included full profit and loss and
a budget overview for the joint wig venture between Davidson and Maraj.
81.
On or about November 21, 2011, Barrett informed Mr. Davidson of the
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82.
Despite Marajs promises to pursue a wig venture and a reality TV show
contract, upon which Mr. Davidson reasonably relied given his prior relationship
with Maraj since 2010, Defendants cut Mr. Davidson out of their wig venture and
misappropriated his wig designs to pursue the wig venture on their own.
83.
Additionally, Defendants cut Mr. Davidson out of a reality TV show deal
and Maraj took the opportunity for herself.
84.
Given Defendants conduct and Mr. Davidsons detrimental reliance upon the
same, injustice can only be avoided by enforcing the aforementioned promises
made by Defendants and/or on Defendants behalf.
85.
As a result of Defendants conduct described herein, Mr. Davidson is
entitled to recover from Defendants all damages that are equitable and necessary to
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COUNT IV
VIOLATION OF THE GEORGIA FAIR BUSINESS PRACTICES ACT
86.
Plaintiff realleges the allegations of Paragraphs 1 through 43 as if fully set
forth herein.
87.
Defendants have engaged in unfair and deceptive practices by selling Mr.
Davidsons wigs and wig designs in the consumer marketplace at retailers, on retail
websites, and additionally on Marajs own website, www.mypinkfriday.com,
without the knowledge and consent of Davidson. The general consuming public
and unwitting third parties who enter into contracts with Defendants for the
purchase and/or use of Davidsons wigs and wig designs are essentially unaware of
the fraudulent misrepresentation that the wigs and wig designs belong to
Defendants.
88.
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89.
More specifically, Defendants are causing confusion or actual
misunderstanding as to the source, affiliation, connection and/or association of the
wigs and wig designs being marketed by Defendants and used in the marketing of
Defendants fragrance line. Indeed, Defendants are openly marketing wigs and
using wig designs created by Mr. Davidson as if they are sourced or created by,
and/or associated with Defendants, and Defendants alone, when in fact they are
not.
90.
Based on the general appearance of the wigs and wig designs shown on
various retail websites, including Maraj's own website, Plaintiff has reason to
believe that the consuming public, of which he is a part, will conclude that the wigs
and wig designs and/or representation of same are, in fact, a distinctive product
belonging to, and created by Maraj, rather than Mr. Davidson, the true inventor and
source of the wigs and wig designs.
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connection and affiliation of the wigs and wig designs lies with Defendants alone,
which is an unlawful and deceptive business practice under the GFBPA.
92.
Defendants' unlawful business practices cause confusion in the consumer
marketplace concerning the true source, affiliation, connection and origin of the
wigs and wig designs. Indeed, several retailers selling the wigs that were designed
by Davidson state that such product is an officially licensed Nicki Minaj product.
See, e.g., http://www.spirithalloween.com/product/nicki-minaj-pink-bun-adult-wig/
(Let your imagination take flight when you create or complete your costume with
this officially licensed adult's Nicki Minaj pink bun wig. [W]ear it with the famous
spacesuit costume or use it to create your own take on this famous and stylish
rapper's look.) (last visited June 4, 2014).
93.
Mr. Davidson was not and is not a commercial competitor of Defendants in
the wig and/or fragrance marketplace. Rather, the commercial sale and
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not required in this case as Defendants neither maintain a place of business within
Georgia nor keep any assets within Georgia. O.C.G.A. 10-1-399.
95.
As a proximate cause of Defendants GFPBA violations, Plaintiff has
suffered damages in an amount to be determined at trial and he is entitled to
recover his reasonable attorneys' fees and expenses of litigation.
96.
Defendants actions set forth above were an intentional violation of the
GFPBA therefore entitling Plaintiff to an award of three times his actual damages.
97.
Defendants actions set forth above were conducted willfully, maliciously,
fraudulently, and with wantonness, oppression, and an entire want of care which
would raise the presumption of indifference to the consequence and entitle Mr.
Davidson to punitive damages in an amount sufficient to punish and deter such
conduct in the future.
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forth herein.
99.
This count arises under Sec. 43 (a) of the Trademark Act of 1946, as
amended, 15 U.S.C. 1125 (a).
100.
After retaining possession of several wigs and wig designs created by Mr.
Davidson, namely, the Pink Upper Bun Wig, the Fox Fur Wig, the Pink High Top
Wig, the Super Bass Wig, and the VS Wig, Defendants surreptitiously and
intentionally replicated these wigs for commercial purposes and have marketed,
advertised and placed these knock offs for sale in the consumer marketplace with
various retailers and retail websites, including her own
website,www.mypinkfriday.com.
101.
Each of the foregoing wigs is inherently distinctive because they are unique,
unusual and unexpected. As will be detailed below, Mr. Davidson claims trade
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and wig designs for their sole purpose of commercial activity, self-dealing, and
self-profit, contrary to the implied agreement between the parties regarding the
limited personal use of the wigs and wig designs and contrary to Marajs promise
to pursue a joint venture with Mr. Davidson.
103.
Defendants have without permission, wilfully and with the intention of
benefitting from the reputation and good will of Mr. Davidson, imitated the
Plaintiffs trade dress in the wigs named in Paragraph 100, supra.
104.
Specifically, the Pink Upper-Bun Wig consists of a distinctive pink upper
bun symbol, which is artfully placed vertically on top of the lower portion of the
head. Mr. Davidson claims protected trade dress in the pink upper-bun.
105.
The symbol reflected in the Fox Fur Wig is another unique, unusual and
unexpected design, with the lower tresses symbolizing the color of a foxs fur.
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106.
The Pink High Top Wig is symbolized by a fluffy and lightweight pink
cotton candy design, cascading asymmetrically above the head in another unique,
unusual and unexpected design. The texture is soft, lightweight and evokes the
ephemeral nature and sweetness of cotton candy. Below the high top, the lower
portion of the wig caresses the face in a darker shade of pink, the combination of
which brings out a womans fun and flirty personality. Trade dress is claimed in
the two-tone unique upwardly gravity-free design of the wig, including texture and
color.
107.
The Super Bass Wig displays another unique and unusual design which is
far from commonplace in the consumer marketplace. The crown of the head splits
the colors into white blonde on one side and pink on the other side. Trade dress is
claimed in the white blonde and pink colors.
108.
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Raggedy Ann curl and unique curly texture, which covers the entire head.
109.
Each of the foregoing wigs and wig designs created by Mr. Davidson bear a
striking and unusual symbol, color, texture, and graphic design, as well as an
undefined evocative emotion experienced by both the wearer and the casual
observer. These symbols make it likely that prospective purchasers will perceive
the designation as an indication of source, namely, Mr. Davidson. Undoubtedly,
the wigs are inherently distinctive based on the five senses.
110.
The features of the trade dress claimed in each of the foregoing wigs and
wig designs are primarily non-functional.
111.
Defendants volitional and outward acts of placing knock off wigs in
commerce is a false and misleading representation of fact, a false and misleading
description of fact, which is likely to cause confusion and mistake between the
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dealing deceives as to the affiliation, connection or association of Minajs wigs
with Mr. Davidson and the origin, sponsorship, or approval of her wigs and
commercial activities and sale of her wigs created by Mr. Davidson. Defendants'
unlawful business practices cause confusion in the consumer marketplace
concerning the true source, affiliation, connection and origin of the wigs and wig
designs.
113.
Indeed, several retailers selling the wigs that were designed by Davidson
state that such product is an officially licensed Nicki Minaj product. See, e.g.,
http://www.spirithalloween.com/product/nicki-minaj-pink-bun-adult-wig/ (Let
your imagination take flight when you create or complete your costume with this
officially licensed adult's Nicki Minaj pink bun wig. [W]ear it with the famous
spacesuit costume or use it to create your own take on this famous and stylish
rapper's look.) (last visited June 4, 2014).
114.
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without proof that the symbols, colors, and designs of the wigs, individually or as
the sum of their parts, together with the emotions they evoke, will automatically be
perceived by customers as an indicator of origin a trademark.
115.
Mr. Davidsons wig designs are capable of creating a commercial
impression distinct from accompanying words or the name of the wig itself. The
claimed trade dress is purely aesthetic, evocative, imaginative, and emotional.
116.
Defendants have used in commerce the symbols depicted in each of
Davidson's wigs and wig designs mentioned herein by placing the same symbol
protectable as trade dress on each of the knock off wigs sold and transported in
commerce by Defendants on various retail websites, including Marajs own
website, www.mypinkfriday.com.
117.
Further, Defendants have used in commerce a false designation of origin,
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Davidson's wigs and wig designs mentioned herein as official Nikki Minaj licensed
products. See, e.g., http://www.spirithalloween.com/product/nicki-minaj-pink-
bun-adult-wig/.
118.
The conduct of the Defendants as alleged in the foregoing paragraphs
constitutes trade dress infringement in violation of Section 43 (a) of the Lanham
Act (15 U.S.C. 1125 (a)).
119.
In addition to resulting in lost sales and lost profits, Defendants acts have
irreparably harmed the reputation of Mr. Davidson.
120.
Plaintiff has been damaged by the acts of the Defendants in an amount as yet
unknown, but on information and belief, Defendants have caused and will continue
to cause damages in excess of $1,000,000.00.
121.
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corporations in active concert or participation and/or affiliation with them from
directly or indirectly infringing or contributing to the infringement of the trade
dress rights of Plaintiff in any manner. Plaintiff is also entitled to an award of
damages in the full amount Plaintiff has sustained as a consequence of Defendants
actions, together with any and all profits of Defendants which are attributable to or
arise out of or from such infringements or wrongful acts.
122.
Defendants actions set forth above were conducted willfully, maliciously,
fraudulently, and with wantonness, oppression, and an entire want of care which
would raise the presumption of indifference to the consequence. As a result of the
willful nature of Defendants actions, Plaintiff is entitled to have the damages that
are awarded be trebled.
COUNT VI
VIOLATION OF THE GEORGIA DECEPTIVE TRADE PRACTICES ACT
123.
D id l th Pi k U B Wi th F F Wi th Pi k Hi h T
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Davidson, namely, the Pink Upper Bun Wig, the Fox Fur Wig, the Pink High Top
Wig, the Super Bass Wig, and the VS Wig, Defendants surreptitiously and
intentionally replicated these wigs for commercial purposes and have marketed,
advertised and placed these knock offs for sale in the consumer marketplace with
various retailers and retail websites, including her own
website,www.mypinkfriday.com.
125.
Each of the foregoing wigs is inherently distinctive because they are unique,
unusual and unexpected. As will be detailed below, Mr. Davidson claims trade
dress protection in discrete elements in each of the wigs. Further, the intrinsic
nature of the wigs serves to identify a particular source, Mr. Davidson, the creator.
126.
Defendants surreptitiously and intentionally replicated Mr. Davidsons wigs
and wig designs for their sole purpose of commercial activity, self-dealing, and
self-profit, contrary to the implied agreement between the parties regarding the
127
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127.
Defendants have without permission, wilfully and with the intention of
benefitting from the reputation and good will of Mr. Davidson, imitated the
Plaintiffs trade dress in the wigs named in Paragraph 124, supra.
128.
Specifically, the Pink Upper-Bun Wig consists of a distinctive pink upper
bun symbol, which is artfully placed vertically on top of the lower portion of the
head. Mr. Davidson claims protected trade dress in the pink upper-bun.
129.
The symbol reflected in the Fox Fur Wig is another unique, unusual and
unexpected design, with the lower tresses symbolizing the color of a foxs fur.
Specifically, trade dress is claimed in the lower tresses of the wig, which consists
of a burnt orange color graduating and cascading into a light auburn color at the
lower end of the hair.
130.
portion of the wig caresses the face in a darker shade of pink the combination of
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portion of the wig caresses the face in a darker shade of pink, the combination of
which brings out a womans fun and flirty personality. Trade dress is claimed in
the two-tone unique upwardly gravity-free design of the wig, including texture and
color.
131.
The Super Bass Wig displays another unique and unusual design which is
far from commonplace in the consumer marketplace. The crown of the head splits
the colors into white blonde on one side and pink on the other side. Trade dress is
claimed in the white blonde and pink colors.
132.
The symbol, graphic design and color reflected in the VS Wig connotes a
Raggedy Ann type curl in a cotton candy pink color. The hair caresses the face and
evokes fanciful and childlike images based on the fictional character and every
young girls playmate. Mr. Davidson claims trade dress protection in the pink
Raggedy Ann curl and unique curly texture, which covers the entire head.
observer These symbols make it likely that prospective purchasers will perceive
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observer. These symbols make it likely that prospective purchasers will perceive
the designation as an indication of source, namely, Mr. Davidson. Undoubtedly,
the wigs are inherently distinctive based on the five senses.
134.
The features of the trade dress claimed in each of the foregoing wigs and
wig designs are primarily non-functional.
135.
Defendants volitional and outward acts of placing knock off wigs in
commerce is a false and misleading representation of fact, a false and misleading
description of fact, which is likely to cause confusion and mistake between the
Defendants trade dress and Plaintiffs trade dress.
136.
Defendants commercial activities as to the sale, marketing and advertising
of knock off wigs for the sole purpose of commercial activity, self-profit and self-
dealing deceives as to the affiliation, connection or association of Minajs wigs
designs
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designs.
137.
Indeed, several retailers selling the wigs that were designed by Davidson
state that such product is an officially licensed Nicki Minaj product. See, e.g.,
http://www.spirithalloween.com/product/nicki-minaj-pink-bun-adult-wig/ (Let
your imagination take flight when you create or complete your costume with this
officially licensed adult's Nicki Minaj pink bun wig. [W]ear it with the famous
spacesuit costume or use it to create your own take on this famous and stylish
rapper's look.) (last visited June 4, 2014).
138.
Defendants have used in commerce the symbols depicted in each of
Davidson's wigs and wig designs mentioned herein by placing the same symbol
protectable as trade dress on each of the knock off wigs sold and transported in
commerce by Defendants on various retail websites, including Marajs own
website, www.mypinkfriday.com.
person with another person, or as to the origin, sponsorship or approval of his or
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