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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-CV-61696-COHN-SELTZER

AROUND THE CLOCK A/C SERVICE, LLC,

d/b/a AIR AROUND THE CLOCK,

Plaintiff,

vs.

ALL YEAR COOLING AND HEATING, INC.

d/b/a ALL YEAR COOLING, a Florida corporation,
and THOMAS SMITH, an individual,

Defendants.
_______________________________________/

DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S VERIFIED COMPLAINT

Defendants, All Year Cooling and Heating, Inc. (“AYC”) and Thomas Smith (“Smith”),

(collectively "Defendants"), by and through undersigned counsel and pursuant to Fed.R.Civ.P

12(b)(6), hereby move to dismiss Counts II-V and VII of Plaintiff’s Verified Complaint and

move to dismiss Plaintiff’s Verified Complaint in its entirety against Defendant Smith, and as

grounds thereof, state as follows.

I. INTRODUC TION AND BACKGROUND.

Plaintiff is the owner of Florida Registration No. T08000000131 for the mark “AIR

AROUND THE CLOCK” for repair, maintenance and installation of air conditioning appliances

services and Florida Registration No. T98000000693 for the mark “AIR AROUND THE

CLOCK A/C APPLIANCE SERVICE and Design” (the “Clock Face Logo”) for repair and

service of air conditioning appliances services. Verified Complaint, ¶¶ 17-18; Exs. A and B. In

January 2009, Plaintiff began an advertising campaign using the advertising copy “Your wife is

hot. Better get your A/C fixed” in connection with Plaintiff’s “AIR AROUND THE CLOCK”

and Clock Face Logo marks. Verified Complaint, ¶ 19, Ex. C. In August 2009, Defendant AYC
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began an advertising campaign with the advertising copy “YOUR WIFE IS NOT HOT! because

you called ALL YEAR COOLING to replace your A/C” in connection with Defendant AYC’s

“ALL YEAR COOLING” trademark, phone number and website (“YOUR WIFE IS NOT HOT!

Advertisement”). Verified Complaint, ¶23-25, Ex. E. Defendant AYC also ran a newspaper

advertisement with the advertising copy “YOUR WIFE IS NOT HOT! because you called ALL

YEAR COOLING to replace your A/C Rather Than the ‘Other Guys’” (“Other Guys

Advertisement”).1 Verified Complaint, ¶28, Ex. F.

After Defendant AYC began its advertising campaign with the “YOUR WIFE IS NOT

HOT! Advertisement, on or about August 28, 2009, Leonard Pereira filed a Florida trademark

application to register the purported mark “YOUR WIFE IS HOT” in connection with air

conditioning repair and service, appliance repair and service and was granted Florida

Registration No. T09000000905. Verified Complaint, ¶20; Ex. D. Moreover, as a result of the

YOUR WIFE IS NOT HOT! Advertisement, on or about September 21, 2009, Plaintiff filed a

verified complaint in state court styled Around the Clock A/C Service, LLC v. All Year Cooling

and Heating, Inc., and Thomas Smith, Case No. 08051635, Seventeenth Judicial Circuit in and

for Broward County, Florida for: (1) trademark infringement under Fla. Stat. §495.131 (Count I);

(2) trademark dilution under Fla. Stat. §495.151 (Count II); (3) violation of Florida’s Deceptive

and Unfair Trade Practices Act, Fla. Stat. §501.201, et. seq. (Count III); and (4) common law

trademark infringement and unfair competition (Count IV) (“State Court Complaint”). Verified

Complaint, ¶27. In addition, on or about September 18, 2009, in the state court action, Plaintiff

filed an Emergency Ex-Parte Motion for Temporary Mandatory Injunction Pursuant to

Fla.R.Civ.P. 1.610 and Fla. Stat. 495.151 which was denied by the state court. Defendants filed

1
(Defendants’ YOUR WIFE IS NOT HOT! Advertisement and Other Guys Advertisement will
collectively be referred to herein as “Defendants’ Advertisements”).

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a Motion to Dismiss Plaintiff’s State Court Compliant for failure to state a cause of action which

is currently pending before the state court.

Thereafter, on or about October 23, 2009, despite its pending state court case, Plaintiff

filed the instant Verified Complaint for: (1) federal unfair competition, 15 U.S.C. §1125(a)(1)

(Count I); (2) false advertising, 15 U.S.C. §1125(a)(1) (Count II); (3) trademark infringement

under Fla. Stat. §495.131 (Count III); (4) trademark dilution under Fla. Stat. §495.151 (Count

IV); (5) declaratory judgment for violation of Florida’s Deceptive and Unfair Trade Practices

Act (“FDUTPA”), Fla. Stat. §501.201, et. seq. (Count V); (6) common law trademark

infringement and unfair competition (Count VI) and (7) common law disparagement and injury

to business reputation (Count VII) (“Federal Court Complaint”). Counts III-VI of Plaintiff’s

Federal Court Complaint contain the identical state court claims which the state court has already

exercised jurisdiction over, and which are still pending in the state court case subject to

Defendants’ Motion to Dismiss therein.

Counts II and VII of Plaintiff’s Verified Complaint for false advertising under Section

43(a) of the Lanham Act and common law disparagement should be dismissed for failure to state

a claim as Defendants’ Advertisements constitute mere “puffing” which is not actionable false

advertisement under the Lanham Act and cannot form the basis for a trade disparagement claim.

Moreover, Plaintiff’s pendent state court claims for trademark infringement under Fla.

Stat. §495.131 and trademark dilution under Fla. Stat. §495.151 (Counts III and IV) should also

be dismissed for failure to state a cause of action.2 Plaintiff is not the owner of Florida

Registration No. T09000000905 for the purported “YOUR WIFE IS HOT” mark (see Verified

Complaint, Ex. C). Furthermore, Plaintiff has not alleged that Defendants used Plaintiff’s

2
Plaintiff’s state court claims for trademark infringement under Fla. Stat. §495.131 and trademark dilution
under Fla. Stat. §495.151 are subject to Defendants’ Motion to Dismiss the State Court Complaint on the same
grounds.
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registered marks in commerce. Plaintiff has also not alleged that the purported “YOUR WIFE IS

HOT” mark is famous in this state or that it became famous prior to Defendants’ use of

Defendants’ Advertisements. In addition, Count V of Plaintiff’s Verified Complaint for

declaratory judgment for violation of FDUTPA should be dismissed for failure to allege

causation and damages.

Lastly, Plaintiff’s Verified Complaint should be dismissed in its entirety against

Defendant Smith, the President of Defendant AYC, for failure to state a cause of action. Plaintiff

has not alleged that Defendant Smith was a direct participant in the alleged wrongdoing. Nor has

Plaintiff alleged any facts to demonstrate that Smith actively and knowingly caused the alleged

wrongdoing or that Smith directed, controlled, ratified, or was the moving force behind same.

Accordingly, as set forth more fully below, Counts II-V and VII of Plaintiff’s Verified

Complaint should be dismissed for failure to state a claim and Plaintiff’s Complaint in its

entirety should be dismissed against Defendant Smith.

II. ARGUMENT.

A. Motion to Dismiss Standard.

To survive a motion to dismiss, a complaint must contain material addressed to each

material element "necessary to sustain a recovery under some viable legal theory." Roe v. Aware

Woman Ctr. for Choice, Inc., 253 F.3d 678, 684 (11th Cir. 2001). This material can be either

direct or inferential, but it must be factual. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,

1965, 167 L. Ed. 2d 929 (2007); Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262-63

(11th Cir. 2004). Thus, "[c]onclusory allegations, unwarranted deductions of facts or legal

conclusions masquerading as facts will not prevent dismissal." Id. (quoting Oxfort Asset Mgmt.,

Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)); accord Twombly, 127 S. Ct. at 1965 ("a

formulaic recitation of the elements of a cause of action will not do . . . .").

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B. Count II of Plaintiff’s Verified Complaint Fails to State A Cause of Action

for False Advertising under the Section 43(a) of the Lanham Act, 15 U.S.C.
§1125(a)(1).

1. Elements of False Advertisement under the Section 43(a) Lanham Act, 15

U.S.C. §1125(a)(1).

To state a false advertising claim under § 43(a)(1)(B) of the Lanham Act, a plaintiff must

allege: (1) the advertisements of the opposing party were false or misleading; (2) the

advertisements deceived, or had the capacity to deceive, consumers; (3) the deception had a

material effect on purchasing decisions; (4) the misrepresented product or service affects

interstate commerce; and (5) the plaintiff has been, or is likely to be, injured as a result of the

false advertising. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir.

2004).

2. Defendants’ Advertisement Constitutes Mere “Puffing” Which is Not

Actionable Under the Lanham Act.

As stated above, to establish a claim under Section 43(a) of the Lanham Act for false

advertising, Plaintiff first has to establish that Defendants’ Advertisements contain false

representations or statements. Plaintiff’s purported false advertising claim arises from

Defendants’ use of the advertising copy “Your Wife is Not Hot Because You Called All Year

Cooling. . . Rather than “The Other Guys.” Verified Complaint at ¶36. Defendants’ Other Guys

Advertisement constitutes mere “puffing” which is not actionable under the Lanham Act. See

Florida Breckenridge v. Solvay Pharms., 47 U.S.P.Q.2d (BNA) 1491, 1998 U.S. Dist. LEXIS

14742 (S.D. Fla. 1998). Further, the Other Guys Advertisement clearly sets AYC apart from the

Plaintiff by identifying in the advertisement that they are not the “other guys.”

Puffery is "advertising, blustering, and boasting upon which no reasonable buyer would

rely and is not actionable under [the Lanham Act] §43(a)." Id. (citing Southland Sod Farms v.

Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997) citing 3 J. Thomas McCarthy, MCCARTHY

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ON TRADEMARKS AND UNFAIR COMPETITION § 27.04[4][d] at 27-52 (3d ed. 1994)). “Puffery is an

exaggeration or overstatement expressed in broad, vague and commendatory language.” Cook,

Perkiss and Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 246 (9th Cir. 1990).

“The common theme that seems to run through cases considering puffery in a variety of contexts

is that consumer reliance will be induced by specific rather than general assertions.” Id. “Vague

advertising claims that one’s product is ‘better’ than that of a competitors’ can be dismissed as

mere puffing that is not actionable as false advertising.” 5 J. Thomas McCarthy, MCCARTHY ON

TRADEMARKS AND UNFAIR COMPETITION (hereafter “MCCARTHY”) §27:38 (2008); Cook, 911

F.2d at 246. “[U]nless a claim that a product is "better" than a competitor's is "backed-up" with

false allegations that "tests prove" superiority when no such tests or only unreliable tests exist to

support such a claim, the superiority claim constitutes no more than unactionable puffery.”

University of Florida Research Found., Inc. v. Orthoiva Inc., 1998 U.S. Dist. LEXIS 22648 *91

(N.D.Fla. 1998). Moreover, subjective claims about products, which cannot be proven either true

or false, are not actionable puffery. Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir. 1995).

Defendants’ Other Guys Advertisement does not contain the kind of detailed or specific

factual assertions that are necessary to state a false advertising cause of action under the Lanham

Act. Rather, the Other Guys Advertisement is a general claim which implies that Defendants’

services are superior to the competitions’. Nor does the Other Guys Advertisement include an

objectively measurable claim which can be reasonably interpreted as an objective fact. No

reasonable consumer would rely upon the statement that “Your wife is not hot because you

called All Year Cooling . . . Rather Than The Other Guys” but would certainly understand it was

a humorous statement and fair competition. As such, Plaintiff’s claim for false advertising

should be dismissed because the Other Guys Advertisement constitutes non-actionable puffery.

Compare Pizza Hut, Inc. v. Papa John's Int'l, Inc., 227 F.3d 489 (5th Cir. 2000) (slogan "Better

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Ingredients. Better Pizza" is puffery as is not "an objectifiable statement of fact upon which

consumers would be justified in relying and it is "general, subjective, and cannot be proven true

or false"); Nikkal Indus., Ltd. v. Salton, Inc., 735 F. Supp. 1227 (S.D.N.Y. 1990) (claim that

home ice cream maker "better" than those of its competitors held puffery); United States

Healthcare v. Blue Cross of Greater Phila., 898 F.2d 914, 926 (3d Cir. 199) (advertising

statement “Better than HMO. So good, it's Blue Cross and Blue Shield" is “the most innocuous

kind of ‘puffing,’ common to advertising and presenting no danger of misleading the consuming

public”); Brignoli v. Balch Hardy and Scheinman, Inc., 645 F. Supp. 1201 (S.D.N.Y. 1986)

(claim that defendant's computer programs "better" than plaintiff's programs held puffery);

McDonald v. Davis, 2009 U.S. Dist. LEXIS 17309 (D.V.I. Mar. 5, 2009) (the claim "the best

small newspaper in America" is non-actionable puffery) With W.L. Gore & Assocs., Inc. v.

Totes Inc., 788 F. Supp. 800, 809 (D. Del. 1992) (numerical comparison that product is seven

times more breathable "gives the impression that the claim is based upon independent testing"

and "is not a claim of general superiority or mere puffing"); Castrol, Inc. v. Pennzoil Co., 987

F.2d 939 (3d Cir. 1993) (advertisement that defendant’s product "outperforms any leading motor

oil against viscosity breakdown" and its motor oil provides "longer engine life and better engine

protection" was not puffery because claim is both specific and measurable by comparative

research and defendant sought to substantiate its claims of superiority by reference to testing).

3. The Court May Determine that Defendants’ Advertisement is

“Puffery” on a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6).

Whether an alleged misrepresentation is an actionable statement of fact or mere puffery is

a matter of law. See Cook, 911 F.2d at 245. District courts often resolve whether a statement is

puffery when considering a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). See e.g. Id. at 246 (upholding dismissal of false advertising claim because statement

that "we're the low cost commercial collection experts" and any implication that plaintiff had
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comparable services to attorneys at lower rates are general assertions of superiority rather than

factual misrepresentations and “it is beyond the realm of reason to assert . . . that a reasonable

consumer would interpret this as a factual claim upon which he or she could rely."); Bologna v.

Allstate Ins. Co., 138 F. Supp. 2d 310, 324 (E.D.N.Y. 2001) (dismissing false advertisement

claim because statement "You're in good hands with Allstate" was nonactionable puffery); Cytyc

Corp. v. Neuromedical Systems, Inc., 12 F. Supp. 2d 296, 300 (S.D.N.Y. 1998) (dismissing false

advertisement claim because statement that described new product as "the new 'Gold Standard'"

was puffery and not actionable under the Lanham Act). Therefore, the Court may appropriately

determine that Defendants’ Other Guys Advertisement constitutes nonactionable puffery in

ruling on the instant Motion and may dismiss Count II of Plaintiff’s Verified Complaint.

C. Plaintiff Has Failed to State A Cause of Action for Trademark Infringement

under Fla. Stat. §495.131.

Count III of Plaintiff’s Verified Complaint for trademark infringement under Fla. Stat.

§495.131 should be dismissed for failure to state a cause of action. As stated above, this exact

claim is currently pending in the state court action and is subject to Defendants’ Motion to

Dismiss therein on the same grounds. The elements of a claim for trademark infringement under

Florida law are as follows: (1) plaintiff owns a valid trademark registered under Florida law; (2)

defendant used an identical or similar mark in commerce without plaintiff's consent; (3)

defendant's use postdates plaintiff's use; and (4) defendant's use is likely to cause confusion.

Haneys Cafe, Inc. v. Haney's Smokehouse, Inc., 2004 U.S. Dist. LEXIS 24959 (M.D. Fla. 2004)

(citing Fla. Stat. §495.131); Great S. Bank v. First S. Bank, 625 So. 2d 463, 466-67 n.4 (Fla.

1993).

Count III of Plaintiff’s Verified Complaint claim fails to allege the essential elements of

trademark infringement under Fla. Stat. §495.131. First, Plaintiff is not the owner or registrant

of Florida Registration No. T09000000905 for the purported “YOUR WIFE IS HOT” mark.
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Leonard Pereira is the owner of Florida Registration No. T09000000905. Verified Complaint

¶20, Ex. D. A claim for infringement under Fla. Stat. §495.131 is expressly restricted to the

registrant and owner of a mark. See Fla. Stat. §495.131.

Second, Plaintiff does not allege that Defendants used an identical or similar mark to

Plaintiff’s registered marks in commerce without Plaintiff's consent. Although Plaintiff alleges

that it owns Florida Registration No. T08000000131 for its “AIR AROUND THE CLOCK”

mark and Florida Registration No. T98000000693 for its Clock Face Logo mark, Plaintiff does

not and cannot allege that Defendants used these registered marks in Defendants’

Advertisements or in any manner. Rather, Plaintiff alleges that Defendants used the purported

“YOUR WIFE IS HOT” mark in Defendants’ Advertisements. Verified Complaint at ¶¶23, 24

and 29. Defendants’ Advertisements in no way use or infringe either of Plaintiff’s register marks.

Accordingly, Count III of Plaintiff’s Verified Complaint fails to state a cause of action for

trademark infringement under Fla. Stat. §495.131 and should be dismissed.

D. Plaintiff Has Failed to State a Cause of Action for Trademark Dilution

under Fla. Stat. §495.151.

Count IV of Plaintiff’s Verified Complaint for trademark dilution under Fla. Stat.

§495.151 also fails to state a cause of action. Similar to Count III of Plaintiff’s Verified

Complaint, this exact claim is also currently pending in the state court action and is subject to

Defendants’ Motion to Dismiss therein on the same grounds.

Florida Statutes § 495.151 states in relevant part:

The owner of a mark that is famous in this state shall be entitled, subject to the
principles of equity and upon such terms as the court deems reasonable, to an
injunction and to obtain such other relief against another person's commercial use
of a mark or trade name if such use begins after the mark has become famous
and is likely to cause dilution of the distinctive quality of the famous mark, as
provided in this section . . .

Count IV of Plaintiff’s Verified Complaint fails to comply with Fla. Stat. §495.151 for several

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reasons. First, as set forth in the statute itself, section 495.151 protects “famous” trademarks in

this state. Nowhere in its Verified Complaint has Plaintiff alleged that the purported “YOUR

WIFE IS HOT” mark is famous and became famous before Defendants’ use of Defendants’

Advertisements. Although Plaintiff has alleged that Florida Registration Nos. T08000000131

(for its “AIR AROUND THE CLOCK” mark) and T98000000693 (for its Clock Face Logo

mark) are famous, Plaintiff has not – and cannot – allege that Defendants used either of these

marks in Defendants’ Advertisements or in any manner. Instead, Plaintiff alleges that

“Defendants’ act, complained of herein constitute trademark dilution in violation of Fla. Stat.

§495.151 because Defendants’ use of ATC’s ‘905 mark [for the alleged “YOUR WIFE IS HOT”

mark] in the state of Florida, in connection with the advertising sales and promotion of

Defendants’ services, has diluted the distinctive quality of the ATC marks.” Verified Complaint

at ¶47 (emphasis added).

Moreover, as discussed above, Plaintiff is not the owner of the purported “YOUR WIFE

IS HOT” mark and Florida Registration No. T09000000905. See Verified Complaint ¶20, Ex.

D. A claim for dilution under Fla. Stat. §495.151 is also restricted to the owner of a mark. See

Fla. Stat. §495.151. Accordingly, since Plaintiff does not own the purported “YOUR WIFE IS

HOT” mark and registration and has not alleged that the purported “YOUR WIFE IS HOT”

mark is famous and became famous prior to Defendants’ use of Defendants’ Advertisements,

Count IV of Plaintiff’s Verified Complaint for dilution under Fla. Stat. §495.151 should be

dismissed.

E. Plaintiff Has Failed to State a Cause of Action for Violation of Florida

Deceptive and Unfair Trade Practices Act, Fla. Stat. §501.201, et. seq.

Count V of Plaintiff’s Verified Complaint for declaratory judgment action for violation of

violation of FDUTPA also fails to state a cause of action. To plead a violation of FDUTPA, a

plaintiff must allege: "(l) a deceptive act or unfair practice; (2) causation; and (3) actual
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damages." Kais v. Mansiana Ocean Residences, 2009 U.S. Dist. LEXIS 25417 (S.D. Fla. 2009)

(citing Rollins, Inc. v. Butland, 951 So.2d 860, 869) (Fla. 2d DCA 2006)).

Plaintiff’s sole allegation for its FDUTPA claim is “Defendants’ acts and use of ATC’s

slogan and trademark complained of herein, are false and deceptive, disparage ATC, constitute

an unfair method of competition, and are an unfair and deceptive trade practice in violation of

Fla. Stat. §501.204.” Verified Complaint at ¶50. Plaintiff has failed to state how any of the

alleged deceptive or unfair practices caused damage to Plaintiff or that Plaintiff has been

damaged as a result. Accordingly, Plaintiff’s claim for declaratory judgment based on FDUTPA

should be dismissed for failure to state a cause of action.

F. Count VII of Plaintiff’s Verified Complaint Fails to State A Cause of

Action for Common Law Disparagement and Injury to Business Reputation.

Plaintiff attempts to state a claim for both common law disparagement and injury to

business reputation in Count VII of its Verified Complaint. However, corporate defamation, or

injury to the reputation of a business, is a separate and distinct tort from the tort of product

disparagement. MCCARTHY §27:101 (2008). Actionable disparagement is a "statement about a

competitor's goods [or services] which is untrue or misleading and which is made to influence or

tends to influence not to buy.” Aerosonic Corp. v. Trodyne Corp., 402 F.2d 223 (5th Cir. 1968).

Defamation of a corporation injures the reputation of the corporation itself, while commercial

disparagement injures the reputation of its products or services. Bose Corp. v. Consumers Union

of United States, Inc., 692 F.2d 189 (1st Cir. 1982). Count VII of Plaintiff’s Verified Complaint

fails to state claim for either common law disparagement or injury to business reputation.

1. Count VII of Plaintiff Fails to State a Claim for Disparagement.

Under Florida law, an action for trade disparagement must establish that the defendant

intentionally made a false statement about the plaintiff's product, and that as a result thereof,

plaintiff has suffered a special injury or damage. See University of Florida Research Found.,
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Inc. v. Ort Orthovita, Inc., 1998 U.S. Dist. LEXIS 22648 (N.D. Fla. 1998); State Farm Fire &

Casualty Co. v. Compay, Inc., 654 So. 2d 944, 948 (Fla. 3d DCA 1995); See also MCCARTHY

§27.111 (“Pleading and proof of special damages is a necessary element of a valid claim for

product disparagement. Without special damages, there is no tort.”). Florida law requires a

plaintiff claiming trade libel to prove special damages by establishing a "pecuniary loss that has

been realized or liquidated, as in the case of specific lost sales." Nat'l Numismatic Certification,

LLC v. eBay, Inc., 2008 U.S. Dist. LEXIS 109793 *59-60 (N.D. Fla. 2008); Salit v. Ruden,

McClosky, Smith, Schuster & Russell, P.A., 742 So. 2d 381, 388 (Fla. 4th DCA 1999) (quoting

W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 128 at 971 (5th ed.1984)). In

doing so, the plaintiff must establish more than general pecuniary harm. Nat'l Numismatic.,

2008 U.S. Dist. LEXIS 109793 *60 (citing Federal Rule of Civil Procedure 9, "[i]f an item of

special damage is claimed, it must be specifically stated." ).

As the basis for its claim for common law disparagement and injury to business

reputation, Plaintiff alleges that:

Defendants’ use of the ATC’s trademarks and advertising color scheme, as well
as Defendants’ YOUR WIFE IS NOT HOT! And OTHER GUYS!
Advertisements, creates a likelihood of injury to ATC because consumers
encountering the advertisements and color scheme will be confused as to the
source of the services being advertised and will mislead to believe that ATC’s
services are of inferior quality and any adverse reaction by the public to ATC and
the quality of its services will injure the business reputation of ATC and the
goodwill that it enjoys in connection with the three ATC marks.

Verified Complaint at ¶58 (emphasis added). According to Plaintiff’s own allegations,

Defendants’ Advertisements express a generalized opinion that Defendants’ services are superior

to the competitions’. Such advertisements are not considered factual. See MCCARTHY §27:109

(citing Brignoli v. Balch Hardy & Scheinman, Inc., 645 F. Supp. 1201, 1208 (S.D.N.Y. 1986)).

Similar to the context of false advertising, mere puffing of one's product, claiming its superiority

over a competitor's product, is not disparagement and is subject to dismissal. Id.; Brignoli, 645
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F. Supp. at 1209; Julie Research Laboratories, Inc. v. General Resistance, Inc., 25 A.D.2d 634

(1st Dep't 1966), aff'd, 19 N.Y.2d 906, 281 N.Y.S.2d 96, 227 N.E.2d 892 (1967) (“Mere general

statements of comparison, declaring that the defendant's goods are the best on the market, or are

better than plaintiff's are privileged so long as they contain no specific assertions of unfavorable

facts reflecting upon the rival product.”) (quoting Prosser, Torts at 949 (3d ed.)).

Moreover, Plaintiff has failed to allege any special injury and damage. Instead, Plaintiff

merely alleges that Defendants’ Advertisement creates “a likelihood of injury” to ATC. Verified

Complaint at ¶58. Therefore, Plaintiff’s claim for common law disparagement should also be

dismissed for failure to allege special damages. See Knights Armament Co. v. Optical Sys.

Tech., 568 F. Supp. 2d 1369 (M.D. Fla. 2008); see also Brignoli, 645 F. Supp. at 1209; Julie

Research, 25 A.D.2d at 635.

2. Plaintiff Fails to State a Claim for Injury to Business Reputation.

The elements of a defamation/injury to business reputation claim are: (1) the defendant

published a false statement; (2) about the plaintiff; (3) to a third party; and (4) the falsity of the

statement caused injury to [the] plaintiff. Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d

1330, 1348 (M.D. Fla. 2006). According to Plaintiff’s own allegations, Defendants’

Advertisements state an opinion of superiority over Plaintiff’s services - not about Plaintiff itself.

See Verified Complaint at ¶ 58 (“consumers . . . will be mislead to believe that ATC’s services

are of inferior quality”). Generally, where the discussion involves a competitor’s services or

product, it is not considered libelous unless it "imputes to the corporation fraud, deceit,

dishonesty, or reprehensible conduct . . . ." U.S. Healthcare, Inc. v. Blue Cross of Greater

Philadelphia, 898 F.2d 914, 924 (3rd Cir.); Dairy Stores, Inc. v. Sentinel Publishing Co., 104

N.J. 125, 516 A.2d 220, 224 (1986) (courts are generally reluctant to impute a lack of integrity to

a corporation merely from a criticism of its product). Defendants’ Advertisements do not meet

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any of these standards. Accordingly, Plaintiff has not stated a claim for injury to business

reputation and Count VII of Plaintiff’s Verified Complaint should be dismissed.

G. Plaintiff’s Verified Complaint in its Entirety Should be Dismissed against

Defendant Smith.

In addition to the above reasons for dismissal of Counts II-V and VII of Plaintiff’s

Verified Complaint, Plaintiff’s Verified Complaint should be dismissed in its entirety against

Defendant Smith, President of Defendant AYC, as Plaintiff has not alleged sufficient facts to

support any of its claims against Defendant Smith in his individual capacity.

In some instances, a corporate officer is potentially individually liable for tortious acts

even though such acts were committed in the scope of employment by the corporation. Chanel,

Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477-78 (11th Cir. 1991) (an individual

officer or director of a company who actively and knowingly causes trademark infringement may

be personally liable); Babbit Elec., Inc. v. Dynascan Corp., 38 F.3d 1161, 1184 (11th Cir. 1994)

(corporate officer who directs, controls, ratifies, participates in, or is the moving force behind the

infringing activity, is personally liable for such infringement). However, “[a] director or officer

of a corporation does not incur personal liability for its torts merely by reason of his official

character.” See Aboujaoude v. Poinciana Development Company II, 509 F. Supp. 2d 1266, 1277

(S.D. Fla. 2007) (quoting Home Loan Corp. v. Aza, 930 So.2d 814, 815 (Fla. 3rd DCA 2006));

Vesta Constr. & Design, L.L.C. v. Lotspeich & Assocs., 974 So. 2d 1176, 1180 (Fla. 5th DCA

2008) (a corporate officer or employee is not liable for the torts of the company simply because

of the person's position with the company). A corporate officer is not liable for torts committed

by or for the corporation unless he has participated in the wrong. See Aboujaoude, 509 F. Supp.

at 1277. Failure to allege sufficient personal conduct by an officer may lead to dismissal of such

a claim. See 1 Charles E. McKenney, FEDERAL UNFAIR COMPETITION LANHAM ACT SECTION

43A §9:8 (2007) (citing Indiana Plumbing Supply v. Standard of Lynn Inc., 880 F. Supp. 743
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Case 0:09-cv-61696-JIC Document 5 Entered on FLSD Docket 11/24/2009 Page 15 of 18

(C.D. Cal. 1995) (corporate officer dismissed for lack of jurisdiction when there was no

allegation he was guiding force in using alleged infringing mark in advertising campaign)).

Moreover, under Florida law, in order to proceed against an individual using a FDUTPA

violation theory, an aggrieved party must allege that the individual was a direct participant in the

improper dealings. See Aboujaoude, 509 F. Supp. 2d at 1276-77; KC Leisure, Inc. v. Haber, 972

So. 2d 1069 (Fla. 5th DCA 2008).

Plaintiff has not alleged that Smith was a direct participant in the alleged infringement,

unfair competition, false advertisement or disparagement. Nor has Plaintiff alleged any facts to

demonstrate that Smith actively and knowingly caused the alleged wrongdoing or that Smith

directed, controlled, ratified, or was the moving force behind same. Plaintiff merely makes the

allegation that “[u]pon information and belief, Defendant Smith is the President and Vice

President of Defendant AYC&H” (Verified Complaint at ¶13) and that “[a]t sometime in August

2009, Defendant AYC&H, under the direction of Defendant Smith, began an advertising

campaign using the slogan YOUR WIFE IS NOT HOT!” (Verified Complaint at ¶23). Such

allegations are insufficient to establish personal liability on behalf of Smith and Plaintiff’s

Verified Complaint should be dismissed in its entirety against Smith.

III. CONCLUSION .

For the foregoing reasons, Counts II-V and VII of Plaintiff’s Verified Complaint should

be dismissed and Plaintiff’s Verified Complaint should be dismissed in its entirety against

Defendant Smith for failure to state a cause of action.

WHEREFORE, Defendants, All Year Cooling and Heating, Inc. and Thomas Smith,

request that Counts II-V and VII of Plaintiff’s Verified Complaint be dismissed, that Plaintiff’s

Verified Complaint be dismissed in its entirety against Defendant Smith and such further relief

the Court deems just and proper.

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Case 0:09-cv-61696-JIC Document 5 Entered on FLSD Docket 11/24/2009 Page 16 of 18

Respectfully submitted,

Dated: November 24, 2009 By: s/Meredith Frank Mendez

John Cyril Malloy, III
Florida Bar No. 964,220
Meredith Frank Mendez
Florida Bar No. 502,235
MALLOY & MALLOY, P.A.
2800 S.W. Third Avenue
Miami, Florida 33129
Telephone (305) 858-8000
Facsimile (305) 858-0008
Email: [email protected]

and

E.J. Generotti
Florida Bar No. 244805
Marc Silverman
Florida Bar No. 144444
FRANK, WEINBERG & BLACK, P.L.
7805 Southwest Sixth Court
Plantation, Florida 33324
Telephone (954) 474-8000
Facsimile (954) 474-9850

Attorneys for Defendants,

All Year Cooling and Heating, Inc. and
Thomas Smith

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Case 0:09-cv-61696-JIC Document 5 Entered on FLSD Docket 11/24/2009 Page 17 of 18

CERTIFICATE OF SERVICE

I hereby certify that on November 24, 2009 I electronically filed the foregoing document
with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record or pro se parties identified on the attached Service List in
the manner specified, either via transmission of Notices of Electronic Filing generated by
CM/ECF or in some other authorized manner for those counsel or parties who are not authorized
to receive electronically Notice of Electronic Filing.

s/Meredith Frank Mendez

Meredith Frank Mendez

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Case 0:09-cv-61696-JIC Document 5 Entered on FLSD Docket 11/24/2009 Page 18 of 18

SERVICE LIST

AROUND THE CLOCK A/C SERVICE, LLC,

v.
ALL YEAR COOLING AND HEATING, INC. and THOMAS SMITH
CASE NO. 08-22185-CIV-COHN
United States District Court, Southern District of Florida

Adam Skolnik John Cyril Malloy, III

[email protected] [email protected]
Florida Bar No. 728,081 Florida Bar No. 964,220
ADAM I. SKOLNIK, P.A. Meredith Frank Mendez
8676 Griffin Road [email protected]
Cooper City, FL 33328 Florida Bar No. 502,235
Telephone: (561) 265-1120 MALLOY & MALLOY, P.A.
Facsimile: (561) 265-1828 2800 S.W. 3rd Avenue
Miami, Florida 33129
and Telephone: (305) 858-8000
Facsimile: (305) 858-0008
Miriam Richter
[email protected] and
Florida Bar No. 44,831
MIRIAM RICHTER, E.J. Generotti
ATTORNEY AT LAW, P.L. [email protected]
3389 Sheridan Street, # 103 Florida Bar No. 244,805
Hollywood, FL 33021 Marc Silverman
Telephone: (954) 240-8819 [email protected]
Facsimile: (954) 961-3585 Florida Bar No. 144,444
FRANK, WEINBERG & BLACK, P.L.
Attorneys for Plaintiff 7805 Southwest Sixth Court
Notices of Electronic Filing Plantation, Florida 33324
generated by CM/ECF Telephone: (954) 474-8000
Facsimile: (954) 474-9850

Attorney for Defendants

Notices of Electronic Filing generated by
CM/ECF

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