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Casual Panache, Inc. v. The Burmax Company, Inc.

United States District Court, W.D. Wisconsin

March 30, 2016

CASUAL PANACHE, INC. Plaintiff,
v.
THE BURMAX COMPANY, INC. Defendant.

OPINION AND ORDER

WILLIAM M. CONLEY District Judge

All of the federal and state law claims alleged in this action arise out of defendant The Burmax Company, Inc. (“Burmax”) including a photograph previously copyrighted by plaintiff Casual Panache, Inc. (“Panache”) in its catalogs, which Burmax allegedly mails to potential customers across the country. Specifically, plaintiff claims that defendant is reproducing, distributing, using and displaying an unauthorized copy of its copyrighted “Click-N-Curl marketing photograph - Rachel” in violation of 17 U.S.C. § 106. Plaintiff also claims that defendant’s conduct constitutes false designation and false description of goods in violation of 15 U.S.C. § 1125. Finally, plaintiff claims that defendant has engaged in false representations in violation of Wis.Stat. § 100.18.

Before the court is a motion by defendant to dismiss all of these claims for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). (Dkt. #9.) Because the court finds that Panache has established a prima facie case of personal jurisdiction over Burmax, it will deny defendant’s motion to dismiss.

ALLEGATIONS OF FACT[1]

Panache is a Wisconsin corporation owned and operated by Kimberly Nimsgern, with its principal place of business located in Menomonie, Wisconsin. Nimsgern is the inventor of a detachable round brush styling tool for women, known as the Click-N-Curl, a Panache product.

In June 2013, Panache arranged for photographer Siri N. Benrud, on a work for hire basis, to take a series of marketing photographs of the Click-N-Curl product. Siri Benrud then assigned the copyright in the series of photographs to plaintiff pursuant to a written agreement.

The photograph at issue, “Rachel, ” was one in this series. The Rachel photograph displays a model using the Click-N-Curl product, which Panache has used extensively in its marketing and advertising for this product.

On October 9, 2014, the U.S. Copyright Office duly and legally issued Copyright Registration No. VA 1-940-013, for Click-N-Curl’s marketing photographs. Panache is the owner of all rights, title and interest in and to the copyright of Click-N-Curl’s marketing photographs.

Burmax is a New York corporation with its principal place of business in Holtsville, New York. Burmax manufactures, imports, and distributes professional beauty supply products. Burmax also caters to wholesale beauty supply distributors and beauty schools. Burmax manufactures, markets and sells some of its products under the brand name ScalpMaster.

One of ScalpMaster’s products is the “Blow-Out Brush Set, ” which plaintiff alleges is similar to the Click-N-Curl product. So much so, in fact, that Burmax apparently uses a reproduction of the copyrighted Rachel photograph in both its marketing catalog and on its website to promote and sell the ScalpMaster Blow-Out Brush Set product, all without Panache’s permission or consent, even though the Rachel photograph actually displays the use of Panache’s Click-N-Curl product rather than Burmax’s ScalpMaster Blow-Out Brush. Burmax’s marketing catalog is distributed to cosmetology schools and beauty salons across the United States, including Wisconsin.

OPINION[2]

In opposing defendant’s motion to dismiss for lack of personal jurisdiction, plaintiff concedes that the court does not have general jurisdiction over Burmax, and therefore only asserts specific jurisdiction as a basis for this court’s exercise of personal jurisdiction over defendant. As such, the court will limit its analysis to that same prong.

As a general matter, a federal court may exercise personal jurisdiction over a nonresident defendant “whenever the person would be amenable to suit under the laws of the state in which the federal court sits (typically under a state long-arm statute), subject always to the constitutional due process limitations encapsulated in the familiar ‘minimum contacts’ test.” KM Enters., Inc. v. Global Traffic Technologies, Inc., 725 F.3d 718, 723 (7th Cir. 2013). Wisconsin’s long-arm statute, Wis.Stat. § 801.05, confers jurisdiction to the maximum extent allowed by the due process clause. See Felland v. Clifton, 682 F.3d 665, 678 (7th Cir. 2012). (“Once the requirements of due process are satisfied, then there is little need to conduct an independent analysis under the specific terms of the Wisconsin long-arm statute itself because the statute has been interpreted to go to the lengths of due process.”).

Regardless, the facts of this case fit squarely within the scope of Wis.Stat. § 801.05(3), which extends personal jurisdiction “[i]n any action claiming injury to person or property within or without this state arising out of an act or omission within this state by the defendant.” Not only does plaintiff allege that defendant has injured the value of its copyright generally, which (although intangible property) is after all maintained on the books of the plaintiff here in ...


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