Weinacker v. Shaddy et al, No. 1:2022cv00028 - Document 40 (S.D. Ala. 2023)

Court Description: MEMORANDUM OPINION AND ORDER ADOPTING 37 Report and Recommendation. It is ORDERED that Defendants' Motion to Dismiss 31 is GRANTED in part and DENIED in part as further set out. This case is REFERRED BACK to the Magistrate Judge for further proceedings. Signed by District Judge Terry F. Moorer on 8/2/2023. (fz)

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Weinacker v. Shaddy et al Doc. 40 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION CHARLES WEINACKER, Plaintiff, vs. PETFRIENDLY, INC., et al., Defendants. ) ) ) ) ) ) ) ) ) CIV. ACT. NO. 1:22-cv-28-TFM-MU MEMORANDUM OPINION AND ORDER On May 3, 2023, the Magistrate Judge entered a Report and Recommendation in which it recommends the motion to dismiss (Doc. 31) be granted in part and denied in part. See Doc. 37. Specifically, some claims would be dismissed with prejudice, some claims dismissed without prejudice, and some claims remain. Id. Plaintiff timely filed his objections and Defendants timely filed their response to the objections. See Docs. 38, 39. The Court has reviewed the objections filed by Plaintiff and found the do little to address the well-reasoned analysis of the Magistrate Judge. As such, they are due to be overruled. Therefore, after due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Recommendation to which objection is made, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of this Court. Accordingly, it is ORDERED as follows: Page 1 of 2 Dockets.Justia.com (1) Defendants’ Motion to Dismiss (Doc. 31, filed 1/20/23) is GRANTED in part and DENIED in part. (2) The motion to dismiss is granted to the extent the following claims are DISMISSED with prejudice: a. Claim 1, as to any trademark infringement claim brought pursuant to 15 U.S.C. § 1114(a) and as to any claim related to the existence of a “registered” trademark; and b. (3) Claim 4 (contributory trademark infringement). The motion to dismiss is further granted to the extent the following claims are DISMISSED without prejudice: (4) a. Claim 6 (copyright infringement); and b. Claim 8 (unjust enrichment). The motion to dismiss is denied and the following claims remain pending in this action: a. Claim 1, as to claims brought pursuant to 15 U.S.C. § 1125(a); b. Claim 2 (common law trademark infringement); c. Claim 3 (dilution); d. Claim 5 (reputational damage); and e. Claim 7 (false designation and unfair competition). This case is REFERRED BACK to the Magistrate Judge for further proceedings. DONE and ORDERED this 2nd day of August, 2023. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES DISTRICT JUDGE Page 2 of 2

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