`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`CASE NO. 8:19-cv-00594-PWG
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`)))))))))))))
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`JAYLEN BRANTLEY and JARED
`NICKENS,
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`Plaintiffs,
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`v.
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`EPIC GAMES, INC., JOHN AND JANE
`DOES 1 THROUGH 50, and JOHN DOE
`CORPORATIONS 1 THROUGH 10,
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`Defendants.
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`DEFENDANT EPIC GAMES, INC.’S MOTION TO DISMISS
`PLAINTIFFS’ FIRST AMENDED COMPLAINT
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`Case 8:19-cv-00594-PWG Document 27 Filed 05/30/19 Page 2 of 4
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`In accordance with the Court’s order to file Defendant Epic Games, Inc.’s (“Epic
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`Games”) motion to dismiss the Amended Complaint by May 30, 2019 (Dkt. No. 25), Epic
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`Games moves the Court for an order dismissing this case in its entirety, pursuant to Federal Rule
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`of Civil Procedure 12(b)(6) (the “Motion”). In support of its Motion, Epic Games submits the
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`accompanying memorandum of law, exhibits submitted therewith, and a proposed order. As
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`explained in the memorandum, each of the claims in the Amended Complaint fails as a matter of
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`law for a number of reasons:
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`1.
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`Plaintiffs Jaylen Brantley’s (“Brantley”) and Jared Nickens’ (“Nickens”)
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`(collectively, “Plaintiffs”) claims of violation of the right of publicity (Count I), unfair
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`competition (Counts II and III), unjust enrichment (Count IV), trademark infringement (Counts
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`V and VI), and false designation of origin (Count VIII) fail because they are preempted by the
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`Copyright Act.
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`2.
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`Count I also fails because Plaintiffs cannot state a right of publicity claim. As
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`Brantley resides in Massachusetts and Nickens resides in New Jersey, their publicity rights are
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`governed by the laws of those respective states. Plaintiffs cannot state a claim under either
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`state’s laws.
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`3.
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`Plaintiffs’ unfair competition (Counts II and III), unjust enrichment (Count IV),
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`and trademark (Counts V through VIII) claims are barred by the First Amendment based on
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`Rogers v. Grimaldi principles. See 875 F.2d 994 (2d Cir. 1989).
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`4.
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`Plaintiffs fail to state a claim for trademark infringement (Counts V and VI) or
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`trademark dilution (Count VII) because they have failed to allege the existence of a valid
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`trademark. Moreover, Plaintiffs’ trademark dilution claim fails for the independent reason that
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`1
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`Case 8:19-cv-00594-PWG Document 27 Filed 05/30/19 Page 3 of 4
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`Plaintiffs have not and could not allege that Epic Games has used Plaintiffs’ alleged mark as
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`Epic Games’ own mark or to identify the source of Epic Games’ own goods or services.
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`For the Court’s convenience, Epic Games provides the following chart summarizing the
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`applicability of each of the above bases for dismissal to each claim in the Complaint.
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`As Plaintiffs amended their complaint with full knowledge of the basis for this Motion
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`and after reviewing Epic Games’ initial pre-motion letter, Epic Games seeks dismissal with
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`prejudice, as any further amendment would be futile.
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`2
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`Case 8:19-cv-00594-PWG Document 27 Filed 05/30/19 Page 4 of 4
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`DATED: May 30, 2019
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`
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`/s/ Dale M. Cendali
`Dale M. Cendali (admitted pro hac vice)
`Joshua L. Simmons (admitted pro hac vice)
`Shanti Sadtler Conway (admitted pro hac vice)
`Megan L. McKeown (admitted pro hac vice)
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`Telephone: (212) 446-4800
`Facsimile: (212) 446-4900
`dale.cendali@kirkland.com
`joshua.simmons@kirkland.com
`shanti.conway@kirkland.com
`megan.mckeown@kirkland.com
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`James P. Ulwick (Fed. Bar No. 00536)
`KRAMON & GRAHAM, P.A.
`One South Street, Suite 2600
`Baltimore, MD 21202-3201
`Telephone: (410) 347-7426
`Facsimile: (410) 539-1269
`julwick@kg-law.com
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`Attorneys for Defendant Epic Games, Inc.
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