United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
RECONSIDERATION AND GRANTING DEFENDANT'S MOTION TO
CERTIFY QUESTION FOR INTERLOCUTORY APPEAL
F. Cox United States District Judge
has moved for reconsideration of this Court's opinion and
order denying its Motion to Dismiss. Alternatively, Defendant
seeks an interlocutory appeal. For the reasons below, the
Court shall deny Defendant's Motion for Reconsideration.
But because the Court's prior opinion and order satisfies
the provisions of 28 U.S.C. § 1292(b), the Court shall
certify that order to the court of appeals for its
Reliable Carriers is a transportation company that has a
registered trademark for the name “Reliable
Carriers.” It has sued Defendant MovingSites, alleging
trademark infringement and trademark dilution claims relating
to the listing of businesses that are infringing on
Plaintiff's mark on the website
www.transportreviews.com, which is developed and
managed by Defendant.
February 21, 2018, the Court issued an opinion and order
denying Defendant's Motion to Dismiss (Doc. # 23). The
Court held that Plaintiff has stated claims for contributory
trademark infringement and contributory trademark dilution.
Defendant now seeks reconsideration or, alternatively,
certification for an interlocutory appeal (Doc. # 24).
Because no response or oral argument are permitted on this
motion, the Court shall resolve it on the brief submitted.
E.D. Mich. LR 7.1(h)(2).
Court will not grant a motion for reconsideration that merely
presents “the same issues ruled upon by the court,
either expressly or by reasonable implication.” E.D.
Mich. LR 7.1(h)(3). Instead, the movant must
“demonstrate a palpable defect by which the court and
the parties and other persons entitled to be heard on the
motion have been misled” and “that correcting the
defect will result in a different disposition of the
case.” Id. A defect is palpable when it is
“obvious, clear, unmistakable, manifest, or
plain.” Chrysler Realty Co., LLC v. Design Forum
Architects, Inc., 544 F.Supp.2d 609, 618 (E.D. Mich.
Motion for Reconsideration
seeks reconsideration of the Court's contributory
trademark infringement analysis. In denying the Motion to
Dismiss, the Court concluded that Defendant facilitated the
alleged third-party direct infringement by continuing to
permit the infringing listings for those businesses to be
displayed on its website. Defendant casts this conclusion as
erroneous, arguing that the complaint failed to allege that
the direct infringer used “the purported contributory
infringer's services as a means or instrumentality of the
particular acts of direct infringement.” Def. Mtn. for
Recon., p. 3-4.
motion, however, merely fleshes out an argument previously
presented to the Court. Defendant's reply brief stated:
“But the FAC does not allege that any purported direct
infringer posted the customer reviews or otherwise caused its
name to appear on the TransportReviews website. To the
contrary, customer reviews are presumably entered by
customers. In short, the FAC fails to identify a single
action by a purported direct infringer that Moving Sites
‘facilitated.'” Def. Reply., p. 5. And the
Court's opinion and order rejected this argument.
Reconsideration is not the appropriate vehicle for Defendant
to attempt to bolster its previous argument. See
E.D. Mich. LR 7.1(h)(3).
argument also fails on its merits. True, Defendant correctly
identifies a common thread between previous contributory
infringement cases. In each, the third-party direct
infringers used, on their own initiative, the contributory
infringer's services as a means for their own
infringement. See, e.g., Coach, Inc. v. Goodfellow,
717 F.3d 498, 504 (6th Cir. 2013) (flea-market vendors);
Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144,
163-65 (4th Cir. 2012) (internet advertisements); Louis
Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658
F.3d 936, 942-43 (9th Cir. 2011) (website); Tiffany (NJ)
Inc. v. eBay Inc., 600 F.3d 93, 106-07 (2d Cir. 2010)
(internet marketplace). And it is also true that this case
stands apart; the complaint contains no allegations that the
third-party infringers caused their names and business
information to be listed on TransportReviews. But this
difference is not fatal to Plaintiff's claim.
argument mistakes a sufficient condition for a necessary one.
Nothing in Goodfellow, the controlling case,
explicitly requires “direct use” by a third-party
infringer as a prerequisite to facilitation. See
Goodfellow, 717 F.3d at 504-05. And for good reason. An
advertising platform, like Defendant's website, can
facilitate a third-party's infringement of a trademark by
displaying that company's information and enabling
customer access to its goods or services. This is true even
if the third-party infringer did not itself seek to advertise
on the platform. And the complaint here alleges that
Defendant displayed listings for third-party infringers and
continued to do so despite being notified that the listings
infringed on Plaintiff's Mark. These listings provide
users of the website with a host of information about those
companies: their contact information, user reviews, and the
opportunity to get a quote. Sought by the direct infringers
or not, Defendant supplied its services to them even after it
knew or had reason to know that they were engaging in
trademark infringement. Inwood Labs., Inc. v. Ives Labs.,
Inc., 456 U.S. 844, 854 (1982); see also Rosetta
Stone, 676 F.3d at 163 (“[T]he defendant must
supply its product or service to ‘identified
individuals' that it knows or has reason to know are
engaging in trademark infringement.”). Defendant's
decision to do so facilitates their direct infringement.
Thus, Defendant has not shown a palpable error and the Court
shall deny its Motion for Reconsideration.