Case 2:22-cv-06050-WJM-ESK Document 47 Filed 09/28/23 Page 1 of 10 PageID: 566
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`Plaintiff,
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`v.
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`Defendants.
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`Civ. No. 2:22-cv-6050 (WJM)
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`OPINION
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`MEDIEVAL TIMES U.S.A., INC.,
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`MEDIEVAL TIMES PERFORMERS
`UNITED, and AMERICAN GUILD OF
`VARIETY ARTISTS,
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`In this action for federal trademark infringement, Defendants Medieval Times
`Performers United and American Guild of Variety Artists (jointly “Defendants”) move to
`dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
`ECF No. 38. The Court decides this motion without oral argument. Fed. R. Civ. P. 78(b).
`For the reasons stated below, Defendants’ motion to dismiss is granted.
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`I. BACKGROUND
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`Medieval Times U.S.A., Inc. (“Medieval Times” or “Plaintiff”) is the owner of the
`entertainment brand MEDIEVAL TIMES® mark that has hosted medieval-themed dinner
`theater performances since the 1980s at its 11th century-style castle structures that feature
`exteriors with ramparts displaying crests and coats of arms, drawbridge and portico gated
`entryways, and interiors adorned with medieval décor, crests, coats of arms, suits of
`armor, and genuine medieval artifacts. Compl., ¶¶ 14, 17; ECF No. 1. The dinner
`performance features jousting on horseback and bouts of hand-to-hand combat between
`knights and other combatants. Id. at ¶ 16. Dinner is a medieval-style feast served in the
`stands by staff in period dress during the staged competitive tournament. Id. Each
`location also sells concessions, including other food and beverage, and features a gift
`shop where consumers can purchase commemorative Medieval Times branded or themed
`merchandise. Id. at ¶¶19-20. Medieval Times castles are located in: (1) Lyndhurst, New
`Jersey; (2) Buena Park, California 90620; (3) Myrtle Beach, South Carolina; (4) Dallas,
`Texas; (5) Schaumburg, Illinois; (6) Kissimmee, Florida; and (7) Scottsdale, Arizona
`85258. Id. at ¶ 4.
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`Plaintiff’s mark (“Medieval Times Mark”) is the subject of U.S. trademark
`registration No. 1,515,854 for “Entertainment services, namely a dinner served in
`medieval style with an accompanying medieval tournament performance” and “Dinner
`served in medieval style preceding and accompanying a medieval tournament
`performance.” Id. at ¶ 23. The Medieval Times Mark is most often displayed in a stylized
`font in either red or yellow meant to evoke the Middle Ages:
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`Id. at ¶ 25; see https://www.medievaltimes.com/.
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`Defendant Medieval Times Performers United (“MTPU” or “Union”) is an
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`unincorporated association formed on or about June 28, 2022, headquartered at or near
`the Medieval Times castle location in Lyndhurst, New Jersey. Id. at ¶¶ 2, 31. In exchange
`for dues from its members, MTPU, represented by and in conjunction with Defendant
`American Guild of Variety Artists (“AGVA”), provides organizational services on behalf
`of its members including engaging in collective bargaining. Id. at ¶ 32. Plaintiff alleges
`that each Defendant “was the agent, principal, alter ego, joint venturer, partner, and/or co-
`conspirator of each other Defendant in this action and, at all relevant times mentioned
`herein, was acting within the course and scope of such capacities and with the consent of
`the other Defendant” in committing the alleged wrongful acts. Id. at ¶ 9.
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`MTPU promotes its goods and services through a website, Medieval Times Union |
`Medieval Times Performers United (mtunited.org). The logo displayed on the MTPU website
`homepage is:
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`Id. at ¶ 34. Plaintiff alleges that the elements featured in the MPTU logo (i.e., castle,
`swords, old script style text) all resemble elements of Medieval Times’s branding and
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`Middle Ages-themed décor. Id. at ¶ 35. The MPTU webpage includes a picture of show
`actors and performers, some in costume.
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`Id. at ¶ 38. Also listed on the MPTU website is an email address for those seeking to get
`in touch with “our union at the castle in Lyndhurst, NJ” as well as an email address for
`those seeking to contact “our union at the castle in Buena Park, CA.” Id. at ¶ 37.
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`On various social media sites, such as Facebook, Twitter, and Instagram, MTPU’s
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`logo is displayed within a red and yellow banner that purportedly resembles the Medieval
`Times Mark’s color scheme, castle image, and a scalloped border evocative of a crest or
`coat of arms:
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`Id. at ¶¶ 40-43. MTPU’s Instagram page advertises the sale of merchandise bearing
`MTPU’s logo:
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`Id. at ¶ 44.
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`On October 13, 2022, Medieval Times filed suit against Defendants MTPU and
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`AGVA seeking monetary and injunctive relief for violations of the Lanham Act,
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`specifically trademark infringement under 15 U.S.C. § 1114 (Count I) and trademark
`infringement, unfair competition, and false designation of origin under 15 U.S.C. §
`1125(a)(1)(A) (Count II). Plaintiff contends that Defendants’ appropriation of Medieval
`Times’s “themes, colors, imagery, private-property, and addresses” as well as use of the
`Medieval Times Mark in MTPU’s name is likely to cause confusion and “could lead to
`the mistaken impression” that MTPU is sponsored or endorsed by Plaintiff and that
`Union membership is required. Id. at ¶¶ 51-53. Defendants move to dismiss the
`Complaint for failure to state a claim and also argue that the Court lacks jurisdiction to
`grant injunctive relief under the Norris-LaGuardia Act.
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`II. DISCUSSION
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`A.
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`Rule 12(b)(6) Motion to Dismiss Standard
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`Fed. R. Civ. P. Rule 12(b)(6) provides for the dismissal of a complaint, in whole
`or in part, if the plaintiff fails to state a claim upon which relief can be granted. The
`moving party bears the burden of showing that no claim has been stated. Hedges v.
`United States, 404 F.3d 744, 750 (3d Cir. 2005). Dismissal is appropriate only if,
`accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead
`“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). Although a complaint need not contain detailed
`factual allegations, “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to
`relief’ requires more than labels and conclusions, and a formulaic recitation of the
`elements of a cause of action will not do.” Id. at 555. A court must take well-pleaded
`allegations as true but need not credit “bald assertions” or “legal conclusions.” In re
`Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997). The factual
`allegations must be sufficient to raise a plaintiff’s right to relief above a speculative
`level, such that the court may “draw the reasonable inference that the defendant is liable
`for
`the misconduct alleged.” Ashcroft v.
`Iqbal, 556 U.S. 662, 678
`(2009)
`(citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
`probability requirement' ... it asks for more than a sheer possibility that a defendant has
`acted unlawfully.” Id. In evaluating a Rule 12(b)(6) motion to dismiss, a court may
`consider only the complaint, exhibits attached to the complaint, matters of public record,
`and undisputedly authentic documents if the plaintiff's claims are based upon those
`documents. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196
`(3d Cir. 1993).
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`B.
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`Trademark Claims
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`To prevail on trademark infringement, false designation of origin, and unfair
`competition claims, a plaintiff must establish that: (1) their marks are valid and legally
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`protectable; (2) they own the marks; and (3) defendants' use of their marks to identify
`goods or services is likely to create confusion concerning the origin of the goods or
`services. See Checkpoint Sys., Inc. v. Check Point Software Tech., Inc., 269 F.3d 270,
`279–80 (3d Cir. 2001) (setting forth elements of trademark infringement and unfair
`competition). Factors relevant to unfair competition and false designation claims under
`15 U.S.C. § 1125 are “essentially the same” as those relevant to trademark infringement
`claim under 15 U.S.C. § 1114. Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d
`466, 472–73 (3d Cir. 1994); A&H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237
`F.3d 198, 210 (3d Cir. 2000) (noting trademark infringement and false designation claims
`analyzed under identical standards). Both sections of the Lanham Act, 15 U.S.C. § 11141
`and 15 U.S.C. § 1125(a)(1)(A),2 also explicitly require that use of the mark be “in
`commerce.” Sensient Techs. Corp. v. SensoryEffects Flavor Co., 613 F.3d 754 (8th Cir.
`2010). Currently, Defendants do not dispute that Plaintiff has a valid and legally
`protectable mark or that Plaintiff owns the Medieval Times Mark. Thus, at issue is
`whether Defendant’s use of Plaintiff’s Mark is likely to create confusion and is “in
`commerce.”
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`“To prove likelihood of confusion, plaintiffs must show that consumers viewing
`the mark would probably assume the product or service it represents is associated with
`the source of a different product or service identified by a similar mark.” Checkpoint Sys.,
`Inc., 269 F.3d at 280 (internal quotes and citation omitted). In noncompeting goods cases,
`no single factor is determinative, but the factors to be weighed, commonly known as the
`Lapp factors, include:
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`(1) [The] degree of similarity between the owner's mark and the alleged
`infringing mark;
`(2) the strength of the owner's mark;
`(3) the price of the goods and other factors indicative of the care and
`attention expected of consumers when making a purchase;
`(4) the length of time the defendant has used the mark without evidence of
`actual confusion;
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`1 15 U.S.C. § 1114(1)(a) provides that any person who, without consent of the trademark holder, “use[s] in
`commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the
`sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use
`is likely to cause confusion, or to cause mistake, or to deceive” is liable for trademark infringement.
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` 15 U.S.C. § 1125(a)(1)(A) makes liable “[a]ny person who, on or in connection with any goods or services, or any
`container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any
`false designation of origin, false or misleading description of fact, or false or misleading representation of fact,
`which--(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
`association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods,
`services, or commercial activities by another person.”
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`(5) the intent of the defendant in adopting the mark;
`(6) the evidence of actual confusion;
`(7) whether the goods, though not competing, are marketed through the
`same channels of trade and advertised through the same media;
`(8) the extent to which the targets of the parties' sales efforts are the same;
`(9) the relationship of the goods in the minds of consumers because of the
`similarity of functions; and
`(10) other facts suggesting that the consuming public might expect the prior
`owner to manufacture a product in the defendant's market or that he is
`likely to expand into that market.
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`Id. at 280 (citing Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir.1983)). In
`evaluating likelihood of confusion, not all of these factors are applicable. See WHS
`Entertainment Ventures v. United Paperworkers Int.’l Union, 997 F. Supp. 946, 951
`(M.D. Tenn. 1998).
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`Upon assessing the relevant Lapp factors, the Court concludes there is no plausible
`likelihood of confusion. First, apart from the strength of the Medieval Times Mark, which
`Defendant does not dispute, Plaintiff claims that features of the MTPU logo, such as the
`use of red and yellow, the stylized text, and use of castle and swords, highly resemble its
`Mark as follows:
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`Compl., ¶ 35. However, the similarity of the marks, which is the “single most important
`factor in determining likelihood of confusion, Kos Pharm., Inc. v. Andrx Corp., 369 F.3d
`700, 712-713 (3d Cir. 2004), is not compelling in this case. Although both employ red
`and yellow in some fashion (in the logos and costumes), “Medieval Times” is written in
`different stylized fonts and colors. The Medieval Times Mark is written in yellow or red
`lettering in contrast to the MPTU logo which is in black font. The arched doorway,
`rectangular shaped parapets or merlons, and swords that the Medieval Times Mark and
`MPTU logo share often appear in medieval themes and castles. Such features certainly
`are not unique to Medieval Times. Finally, the scalloped border used by MTPU is not
`similar to or sufficiently evocative of the crest-like symbols that Medieval Times
`employs. In sum, neither a side-by-side comparison nor the overall impression is
`confusingly similar. See e.g., Brach Van Houten Holding, Inc. v. Save Brach's Coal. for
`Chicago, 856 F. Supp. 472, 475 (N.D. Ill. 1994) (finding defendant's logo - “SAVE”
`written above and “Coalition for Chicago” below “Brach’s” with pink and purple stripe
`background and star-shaped apostrophe – to be substantially similar to federally
`registered “Brach’s” with pink and purple stripe background and star-shaped apostrophe).
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`Regarding the fifth Lapp factor, Plaintiff has not plead any facts to show that
`Defendant, in adopting the Mark, intended to cause confusion. Rather, MPTU’s use of
`Plaintiff’s brand name as part of its own name3 as well as the colors, castle, and swords in
`its logo serve to identify the Union as employees of Medieval Times.4 “The choice of a
`particular name by a labor organization may very well facilitate its organizational drive to
`represent the employees of a particular employer. The name may serve to identify and
`publicize the employer which is the target of the campaign and to instill a measure of
`collective identity among employees.” Marriott Corp. v. Great Am. Serv. Trades Council,
`AFL-CIO, 552 F.2d 176, 179–80 (7th Cir. 1977). See also Silgan Containers LLC v. Int'l
`Ass'n of Machinists & Aerospace Workers, AFL-CIO, No. 18-213, 2018 WL 5840766, at
`*3 (E.D. Wis. Nov. 8, 2018) (finding no plausible likelihood of confusion as “IAM is not
`using the SILGAN trademark as a source identifier for its services or to sow confusion as
`to whether Silgan approves or is affiliated with IAM's efforts, but rather to identify Silgan
`as the employer of the employees IAM is attempting to unionize.”); United We Stand
`Am., Inc. v. United We Stand Am. N.Y., Inc., 128 F.3d 86, 92–93 (2d Cir. 1997) (noting
`no trademark infringement if defendants use “plaintiff's mark not in a manner that would
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`3 Plaintiff accuses Defendant of avoiding the word “union” but cites no caselaw to support its suggestion that the
`absence of “union” in MTPU’s name is a relevant factor in determining likelihood of confusion. MTPU is certainly
`not the only union to not include “union” in its name. See e.g., Starbucks Workers United (sbworkersunited.org).
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` 4
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` The Court need not examine whether Plaintiff is correct that “fair use” cannot be a basis for dismissal under Rule
`12(b)(6). The “nominative fair use test,” which replaces the likelihood of confusion test in the Ninth Circuit, is an
`affirmative defense that in the Third Circuit, must be proven by defendant “after likelihood of confusion has been
`demonstrated by the plaintiff.” Century 21 Real Est. Corp. v. Lendingtree, Inc., 425 F.3d 211, 228 (3d Cir. 2005)
`(emphasis added). As discussed herein, Plaintiff does not sufficiently plead likelihood of confusion.
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`create confusion as to the source, but rather as part of a message whose meaning
`depend[s] on reference to plaintiff's product”).
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`Moreover, Plaintiff has pled no factual allegations that support its theory that
`Defendants’ use of the MTPU name could lead to the mistaken impression that
`Defendants are affiliated with or endorsed by Medieval Times or that Medieval Times’
`employees are required to become members of the Union. Plaintiff’s assertion is entirely
`conclusory. In fact, consumers are not likely to believe that Defendants are endorsed by
`Medieval Times or to be confused as to source because the MTPU logo, as discussed
`above, is not confusingly similar to the Medieval Times Mark and instead clearly states:
`“Medieval Times actors, stunt performers, and stable hands are joining together in union.
`Represented by the American Guild of Variety Artists (AGVA)” and “United for a fairer,
`safer, and more enjoyable workplace at Medieval Times.” See Int'l Ass'n of Machinists &
`Aerospace Workers, AFL-CIO v. Winship Green Nursing Ctr., 103 F.3d 196, 204 (1st
`Cir. 1996) (“in certain circumstances otherwise similar marks are not likely to be
`confused if they are used in conjunction with clearly displayed names, logos or other
`source-identifying designations of the manufacturer.”).
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`Given the union context, consumers are also not likely to be confused as to
`similarity of function. In fact, MTPU expressly states on its website that members are on
`strike due to “Medieval Times management’s anti-union and anti-worker behavior.”
`Where, as here, a labor union uses an employer’s trademark as part of communications
`about the employer’s labor practices, courts have often held that that is unlikely to cause
`confusion. See e.g., Silgan Containers LLC, 2018 WL 5840766, at *3-4 (dismissing
`trademark claim against union for use of employer’s trademarked name in social media
`platforms recognizing that “[c]onfusion is even less likely to occur [] in the context of an
`attempt to unionize laborers given the inherent adversarial relationship”); Circle Grp. v.
`Se. Carpenters Reg'l Council, No. 09-3039, 2010 WL 11549830, at *6 (N.D. Ga. May 5,
`2010) (dismissing trademark infringement claim where union’s use of Circle’s mark as
`part of “negative publicity campaign” against labor practices rather than as “source
`identifier” made likelihood of confusion remote); Cintas Corp. v. Unite Here, 601 F.
`Supp. 2d 571, 579 (S.D.N.Y. 2009) (“Defendants' entire effort is directed at attacking
`Cintas. … Defendants are not using the “CINTAS” mark as a “source identifier”, but
`rather solely to criticize Cintas's corporate practices.”), aff'd, 355 F. App'x 508 (2d Cir.
`2009) (agreeing that union’s use of employer’s mark to criticize employer was not likely
`to cause confusion and did not violate Lanham Act even where website sold union
`merchandise such as “t-shirts, pins and other sundry items”); Cellco P'ship v. Commc'n
`Workers of Am., No. 02-5542, 2003 WL 25888375, at *1 (D.N.J. Dec. 11, 2003)
`(granting motion to dismiss where labor organization’s parody of Verizon Wireless
`slogan, “Can You Hear Me Now? Good” was pro-labor commentary in labor dispute
`against company associated with Verizon); WHS Entertainment Ventures, 997 F. Supp.
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`946 (finding no likelihood of confusion for Lanham Act violation where flyers bearing
`parody of trademarked Wildhorse Saloon logo and listing series of health violations was
`used to further union’s position in labor dispute); see also Giant Food LLC, 2012 NLRB
`LEXIS 896, at * 25 (NLRB G.C. March 21, 2012) (noting use of protected mark “while
`engaging in Section 7 activity5 would not infringe on [the employer’s proprietary
`trademark] interest.” (footnote added)). Cf. Brach Van Houten Holding, Inc., 856 F.
`Supp. 472 (enjoining use of substantially similar logo, but not Brach’s name, where
`defendant coalition failed to establish that its activities to prevent closing of candy
`factory met definition of labor dispute under Norris-LaGuardia Act); United We Stand
`America, Inc., 128 F.3d at 92, 93 (finding political group’s appropriation of another
`organization’s protected mark to raise money in support of presidential candidacy was
`not commentary on owner but use as source identifier that would cause “significant
`consumer confusion”).
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`Next, Plaintiff alleges that MTPU has shown bad faith in adopting the Medieval
`Times Mark. Specifically, Plaintiff accuses MTPU of claiming the Lyndhurst and Buena
`Park castle locations as its own by listing in its website an email address to reach “our
`union at the castle in Lyndhurst, NJ” and another to reach “our union at the castle in
`Buena Park, CA,” Compl., ¶ 37. However, reference to the two locations accurately
`reflect that there are two unions - one for those who work at the castle in CA and another
`for those who work at the castle in NJ. Affording Plaintiff every favorable inference, the
`Court cannot conclude that information on how to contact the Union for those locations
`exhibits bad faith.
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`Finally, while Plaintiff correctly posits that “[e]vidence of actual confusion is not
`required to prove likelihood of confusion,” under the sixth Lapp factor, actual confusion
`“may be highly probative of the likelihood of confusion.” Checkpoint Sys., Inc., 269 F.3d
`at 291. As Plaintiff has not alleged any actual confusion, this factor does not favor
`finding a likelihood of confusion.
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`In sum, Plaintiff has not sufficiently pled facts to show that there is a plausible
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`likelihood that consumers would reasonably confuse Plaintiff’s “Medieval Times” Dinner
`and Entertainment experience with Defendants’ use of the MTPU logo in publicly
`challenging and trying to reform Plaintiff’s labor practices. Although Plaintiff insists that
`dismissal is inappropriate because the likelihood of confusion is a fact-bound inquiry, not
`“every infringement case involving a source-identifying use requires full-scale litigation.
`…[I]f, in a given case, a plaintiff fails to plausibly allege a likelihood of confusion, the
`district court should dismiss the complaint under Federal Rule of Civil Procedure
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`5 29 U.S.C. § 157 provides for the right of employees to organize and to bargain collectively.
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`12(b)(6)." Jack Daniel's Properties, Inc. v. VIP Prod. LLC, 599 U.S. 140, 157, n.2
`(2023); FoodScis. Corp. v. Nagler, No. 09-1798, 2010 WL 4226531, at ^3 (D.N.J. Oct.
`20, 2010) ("Likelihood of confusion is an issue well-suited for screening at the motion to
`dismiss stage. This is not an area of law in which plaintiffs face information asymmetries
`such that even viable claims will be lacking in critical information before discovery. On
`the contrary, by its nature, a trademark claim turns on facts known to a plaintiff because it
`requires a showing that the public is likely to be deceived by the public conduct of the
`defendant toward the plaintiffs own mark.").
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`Because Plaintiff has failed to allege facts sufficient to show plausible likelihood
`of consumer confusion, which a necessary element for both counts of its trademark
`claims, the Court need not address the Lanham Act's "in use" requirement. Defendants'
`motion to dismiss is granted. The Complaint is dismissed against MTPU and AGVA.
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`C. Non'is-LaGuardia Act
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`The Noms-LaGuardla Act provides deprives the Court of jurisdiction "to issue
`any restraining order or temporary or permanent injunction in a case involving or
`growing out of a labor dispute, except in a strict conformity with the provisions of this
`chapter," and cannot be "contrary to the public policy declared in this chapter." 29 U.S.C.
`§ 101. Because Plaintiffs' Complaint is dismissed for failure to allege violation of the
`Lanliam Act, there is no basis for any relief. Thus, the Court does not reach the question
`whether the Norris La-Guardia Act deprives this Court of jurisdiction to grant injunctive
`relief.
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`III. CONCLUSION
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`For the foregoing reasons. Defendants' motion to dismiss is granted. The
`Complaint, including the request for injunctive relief, is dismissed.
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`Date: September 28, 2023
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