Case: 17-13043 Date Filed: 03/13/2018 Page: 1 of 7
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 17-13043
`Non-Argument Calendar
`________________________
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`D.C. Docket No. 8:16-cv-03361-JSM-JSS
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`PHOENIX ENTERTAINMENT PARTNERS,
`LLC,
`a North Carolina LLC,
`
` Plaintiff-Appellant,
`
`versus
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`CASEY ROAD FOOD AND BEVERAGE, LLC,
`d.b.a.
`Bucket’s Tavern and Tap,
`
` Defendant,
`KEVIN BURKE,
`d.b.a.
`Mystic Entertainment,
`
` Defendant-Appellee.
`
`________________________
`
`Appeal from the United States District Court
`for the Middle District of Florida
`________________________
`
`(March 13, 2018)
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`

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`Case: 17-13043 Date Filed: 03/13/2018 Page: 2 of 7
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`Before ED CARNES, Chief Judge, JULIE CARNES, and HULL Circuit Judges.
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`PER CURIAM:
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`Phoenix Entertainment Partners, LLC brought this Lanham Act case against
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`Kevin Burke, a karaoke disc jockey.1 The district court dismissed the case, and
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`Phoenix appealed, contending that it sufficiently pleaded claims for service mark
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`infringement, 15 U.S.C. § 1114, and unfair competition, id. § 1125.
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`I.
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`In reviewing a district court’s order dismissing a case under Federal Rule of
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`Civil Procedure 12(b), we accept as true the allegations in the complaint and recite
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`the facts in the light most favorable to Phoenix. Duty Free Ams., Inc. v. Estee
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`Lauder Cos., Inc., 797 F.3d 1248, 1262 (11th Cir. 2015).
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`Phoenix owns the federally registered mark, SOUND CHOICE, as it is used
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`for selling karaoke accompaniment tracks and for conducting karaoke shows.
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`Karaoke accompaniment tracks play during karaoke performances, providing
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`background music and displaying each song’s upcoming lyrics to performers and
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`the crowd. Phoenix originally released its Sound Choice tracks on compact discs,
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`not on hard drives or through internet downloads, but advances in technology have
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`made it possible to shift the tracks from discs to computer hard drives. A digital
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`1 Phoenix also brought trademark infringement claims against one of Burke’s clients,
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`Casey Road Food and Beverage, LLC. Casey and Phoenix settled before the court granted
`Burke’s motion to dismiss.
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`2
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`Case: 17-13043 Date Filed: 03/13/2018 Page: 3 of 7
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`copy of a Sound Choice track retains all of the original track’s information, so
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`when a user plays the copied track, the Sound Choice mark is broadcast along with
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`the other graphics.
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`Burke is a karaoke DJ who provides karaoke entertainment services to
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`various venues, such as restaurants and bars. During his shows he serves as emcee
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`and uses computer software to play karaoke accompaniment tracks, including
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`tracks that are embedded with the Sound Choice mark.
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`Phoenix alleges that those tracks are “pirated” or unauthorized copies, and it
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`filed this suit claiming that Burke engaged in service mark infringement, 15 U.S.C.
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`§ 1114(1)(a), and unfair competition, id. § 1125(a), by displaying Phoenix’s Sound
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`Choice mark during his shows.2 Burke moved to dismiss the case, and the court
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`granted his motion, finding that Phoenix’s claims sound in copyright law, not
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`trademark. This is Phoenix’s appeal.
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`II.
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`We review de novo a district court’s order dismissing a complaint under
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`Federal Rule of Civil Procedure 12(b)(6). Duty Free, 797 F.3d at 1262. “To
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`survive a motion to dismiss, a complaint must contain sufficient factual matter,
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`2 Phoenix also brought claims against Burke for goods-based trademark infringement and
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`trade dress infringement. Phoenix voluntarily waived the goods-based infringement claim. And
`it does not contest the district court’s resolution of the trade dress claim, so that issue is
`abandoned. See AT&T Broadband v. Tech Commc’ns., Inc., 381 F.3d 1309, 1320 n.14 (11th
`Cir. 2004).
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`Case: 17-13043 Date Filed: 03/13/2018 Page: 4 of 7
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`accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation marks omitted).
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`That means that Phoenix must plead sufficient facts for “the court to draw the
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`reasonable inference that [Burke] is liable for the misconduct alleged.” Id.
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`Phoenix contends that it has properly pleaded claims for service mark
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`infringement and unfair competition. To plead a valid claim for service mark
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`infringement, Phoenix must allege that Burke uses the Sound Choice mark in the
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`“sale, distribution, or advertising” of his services and that his “use is likely to cause
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`confusion.” 15 U.S.C. § 1114(1)(a). And for unfair competition Phoenix must
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`allege that Burke’s use “is likely to cause confusion” about an “affiliation,
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`connection, or association” between Phoenix and Burke’s services or about the
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`“the origin, sponsorship, or approval” of his services by Phoenix. Id. §1125(a)(1).
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`The only disputed issue under both claims is whether Phoenix has alleged facts
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`that, if true, show a likelihood of consumer confusion. See Savannah Coll. of Art
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`and Design, Inc. v. Sportswear, Inc., 872 F.3d 1256, 1261 (11th Cir. 2017) (“We,
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`like other circuits, often blur the lines between § 1114 claims and § 1125 claims
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`because recovery under both generally turns on the confusion analysis.”).
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`The Ninth and Seventh Circuits have ruled on similar claims by Phoenix and
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`found them unpersuasive. See Slep-Tone Entm’t Corp. v. Wired for Sound
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`Karaoke and DJ Servs., LLC, 845 F.3d 1246, 1250 (9th Cir. 2017); Phoenix Entm’t
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`4
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`Case: 17-13043 Date Filed: 03/13/2018 Page: 5 of 7
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`Partners, LLC v. Rumsey, 829 F.3d 817, 830–31 (7th Cir. 2016).3 Although we
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`are not bound by the holdings of other circuits, see Bonner v. City of Pritchard,
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`661 F.2d 1206, 1209 (11th Cir. 1981), we find the reasoning in those cases
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`persuasive and agree that Phoenix has not alleged valid claims under the Lanham
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`Act.
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`Phoenix does not assert that Burke uses the Sound Choice mark to advertise
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`his services or that Burke displays the mark other than as part of the
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`accompaniment tracks in which it is embedded. Even if, as Phoenix claims, the
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`Sound Choice mark is displayed multiple times each show (in association with
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`many different songs), it’s unclear how that display does more than identify
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`Phoenix as the source of those individual tracks.4 Unless Burke uses the Sound
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`Choice mark outside of those tracks, consumers are not likely to be confused about
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`an association, sponsorship, or affiliation between Phoenix and Burke’s DJ
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`business, or to be confused about the, sponsorship, or approval of his services by
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`Phoenix. See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 32–
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`3 By assignment Phoenix succeeded Slep-Tone Entertainment Corporation in all interest
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`in the Sound Choice brand. For ease of reference, we refer to both as Phoenix.
`4 The Seventh Circuit compared the display of the Sound Choice mark before each song
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`to the use of a film production studio’s mark before a movie (for example, the Metro-Goldwyn-
`Mayer Studios’ roaring lion). See Rumsey, 829 F.3d at 829. As the court explains, “[w]hen the
`copyright on [a film] expires, enabling any member of the public to copy and use the work
`without license, it is not a trademark violation simply to display the work without first deleting
`the mark that was inserted into its content.” Id. When a theater patron watches the
`uncopyrighted film at a theater, “there is no risk that [they] might think that [the studio] is
`sponsoring or endorsing the performance” as long as the studio’s “mark is not overtly used to
`market the performance.” Id. at 830.
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`Case: 17-13043 Date Filed: 03/13/2018 Page: 6 of 7
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`33, 123 S. Ct. 2041, 2047 (2003) (“The words of the Lanham Act should not be
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`stretched to cover matters that are typically of no consequence to purchasers.”);
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`Crystal Entm’t & Filmworks Inc. v. Jurado, 643 F.3d 1313, 1323 (11th Cir. 2011)
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`(“The touchstone of liability in a trademark infringement action is not simply
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`whether there is unauthorized use of a protected mark, but whether such use is
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`likely to cause consumer confusion.”) (quotation marks omitted and alterations
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`accepted); see also Rumsey, 829 F.3d at 829 (“That the Sound Choice mark is
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`embedded in the creative content of the karaoke track and is visible to the public
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`whenever the track is played does not falsely suggest that [Phoenix] is endorsing
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`the performance, as the plaintiffs have alleged.”).
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`At most patrons are likely to be confused about whether Phoenix authorized
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`Burke to copy and use its accompaniment tracks. But the unauthorized copying
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`and display of a creative work is a copyright claim, not a trademark claim. See
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`Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432–33, 104
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`S. Ct. 774, 784 (1984) (“[T]he Copyright Act grants the copyright holder
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`‘exclusive’ rights to use and to authorize the use of his work in five qualified ways,
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`including reproduction of the copyrighted work in copies.”). And a trademark
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`claim cannot serve as a vehicle for what is really a copyright claim. See Dastar
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`Corp., 539 U.S. at 34, 123 S. Ct. at 2048 (2003) (“[I]n construing the Lanham Act,
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`we have been careful to caution against misuse or over-extension of trademark and
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`Case: 17-13043 Date Filed: 03/13/2018 Page: 7 of 7
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`related protections into areas traditionally occupied by patent or copyright.”)
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`(quotation marks omitted); see also Wired for Sound, 845 F.3d at 1250 (concluding
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`that Phoenix’s “claim is more accurately conceived of as attacking the
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`unauthorized copying, [and] Dastar requires us to avoid recognizing a ‘species of
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`mutant copyright law’ by making such claims cognizable under the Lanham Act”);
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`Rumsey, 829 F.3d at 824 (same).
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`Because the display of individual tracks embedded with the Sound Choice
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`mark is not likely to confuse consumers about Burke’s DJ services, the district
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`court did not err by granting Burke’s motion to dismiss Phoenix’s claims.
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`AFFIRMED.
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`7
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