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BenShot, LLC v. Lucky Shot USA LLC

United States District Court, E.D. Wisconsin

February 8, 2019

BENSHOT, LLC, Plaintiff,
v.
LUCKY SHOT USA LLC and 2 MONKEY TRADING LLC, Defendants.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge United States District Court.

         Plaintiff BenShot, LLC (BenShot) filed this action against Defendants Lucky Shot USA LLC (Lucky Shot USA) and 2 Monkey Trading LLC (2 Monkey), alleging that the defendants violated Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and unfair competition common law. The court has jurisdiction under 28 U.S.C. §§ 1331 and 1367(a). Presently before the court is the defendants' motion to dismiss BenShot's complaint for failure to state a claim upon which relief can be granted. For the reasons stated below, the defendants' motion will be denied.

         LEGAL STANDARD

         “A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014); Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When reviewing a Rule 12(b)(6) motion to dismiss, the court must accept all well-pleaded facts in the complaint as true and view them in a light most favorable to the plaintiff. Doe v. Vill. of Arlington Heights, 782 F.3d 911, 914-15 (7th Cir. 2015). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557).

         ALLEGATIONS OF THE COMPLAINT

         BenShot is a Wisconsin Limited Liability Company that has manufactured, promoted, sold, and distributed unique drinking glasses since 2015. BenShot sells its products throughout the United States. Lucky Shot USA is a Florida Limited Liability Company that promotes, sells, and distributes products made from used ammunition and artillery shells, and operates and does business on Amazon.com, LuckyShotUSA.com, and MilitaryBalls.com. Lucky Shot USA sells its products in interstate commerce. 2 Monkey is a Florida Limited Liability Company and the parent company of Lucky Shot USA. 2 Monkey acts in concert with Lucky Shot USA to sell Lucky Shot-branded products in interstate commerce.

         In 2015, BenShot began selling drinking glasses with bullets embedded in the side via an insertion in the glass. BenShot initially sold shot and tumbler glasses, and then later added pint and wine glasses. Around October 2016, Lucky Shot USA began advertising and selling a shot glass with a bullet embedded in the side on Amazon.com and LuckyShotUSA.com. Around March 2017, Lucky Shot USA added an embedded whiskey glass. Around August 2017, Lucky Shot USA began selling embedded pint and wine glasses. Since 2017, Lucky Shot USA has operated MilitaryBalls.com to advertise and sell its products.

         On Amazon.com, 2 Monkey is listed as the manufacturer of Lucky Shot's USA glasses. The retail packaging of Lucky Shot USA's shot, whiskey, and wine glasses states: “Distributed by 2 Monkey Trading, LLC. Packaging and product design © 2 Monkey Trading, LLC.” ECF No. 1 at ¶ 16. 2 Monkey owns the federal trademark registration to the mark “Lucky Shot.” Lucky Shot USA's logo contains the terms “U.S.A.” and “HANDCRAFTED.” Id. at ¶ 18. Lucky Shot USA's logo appears on the top and sides of the product packaging for its embedded shot, whiskey, pint, and wine glasses, as well as in promotional material.

         Lucky Shot USA and 2 Monkey advertise and promote Lucky Shot USA's entire product line, including its shot, whiskey, pint, and wine glasses, as “Made in the USA, ” and they do so without qualification. In its point-of-purchase displays for the shot and whiskey glasses, Lucky Shot USA includes the large text “MADE IN THE USA” and images of the American flag and the Lucky Shot USA logo. The Amazon.com listings for Lucky Shot USA's shot and whiskey glasses include “Made in the USA” text. The Amazon.com listings for the whiskey, pint, and wine glasses use a partial image of an American flag in front of the product images. The pint and wine glass listings include the language: “Top Brand items made right here in the USA.” Id. at ¶ 29.

         As of September 10, 2018, Lucky Shot USA states in its welcome letter to newsletter subscribers that “Each Lucky Shot USA product is American made to cater to the discriminating eye of historians and collectors alike.” Id. at ¶ 31. The newsletter also contains Lucky Shot USA's logo. Lucky Shot USA's Instagram account states, “Our products are proudly made in the USA!, ” and the profile picture states “MADE IN THE U.S.A.” Id. at ¶ 32.

         The LuckyShotUSA.com website lists “MADE IN THE USA” on the bottom of each page, and MilitaryBalls.com displays “Proudly Made in America” in front of a picture of an embedded shot glass. Id. at ¶¶ 33-34. Lucky Shot USA advertises on Google.com, stating “Lucky Shot USA | Handcrafted in the USA | LuckyShotUSA.com.” Id. at ¶ 35. 2 Monkey advertises Lucky Shot USA's products on 2monkey.com using the Lucky Shot USA logo, except that “U.S.A” is replaced with “MADE IN THE USA.” Id. at ¶ 40. 2 Monkey also advertises Lucky Shot USA products on Alibaba.com, and its company profile on the site states, “Our products are designed and developed in the USA and contract manufactured in China.” Id. at ¶ 46.

         In March 2017, and again in May 2018, Ben Wolfgram from BenShot had telephone conversations with Douglas Ingalls, Lucky Shot USA's registered manager. In these conversations, Ingalls admitted that the glass portions of at least Lucky Shot USA's shot and whiskey glasses were made in China. The bottom of Lucky Shot USA's whiskey glass packaging states, “Glass and packaging made in China.” Id. at ¶ 47. Benshot alleges that Lucky Shot USA fails to meet the Federal Trade Commission (FTC) standard in order for a product to be designated as “Made in USA” because it imports the glass portion of its embedded glasses. Lucky Shot USA is currently promoting the sale of its embedded glasses as “Made in the USA” on LuckyShotUSA.com, Amazon.com, and in interstate commerce, and 2 Monkey is promoting the sale of the glasses on 2monkey.com, Alibaba.com, and in interstate commerce.

         BenShot alleges that Lucky Shot USA and 2 Monkey's false and misleading statements are causing and are likely to continue to cause injury due to the significance and value that buying American has on potential and actual customers of BenShot's products. Moreover, BenShot alleges that Lucky Shot USA and 2 Monkey's making of improper and unqualified representations as to the origin of their products has “egregiously injured BenShot and has been undertaken willfully and with . . . intent and knowledge that such action would cause confusion, mistake, or deception among the public.” Id. at ¶¶ 61-62.

         BenShot alleges two causes of action: a Section 43(a) Lanham Act claim and a Wisconsin common law unfair competition claim. Because BenShot “has been and continues to be damaged by Lucky Shot USA and 2 Monkey's acts” and because such acts “have caused BenShot to suffer substantial damage, ” id. at ΒΆΒΆ 73, 77, BenShot requests relief in the form of a ...


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