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Sandshaker Lounge & Package Store LLC v. RKR Bev. Inc.

United States District Court for the Northern District of Florida, Pensacola Division

September 27, 2018, Decided; September 27, 2018, Filed

Case No. 3:17-cv-00686-MCR-CJK

Opinion

ORDER

Pending before the Court is Defendant Aloha Screen Printing, LCC's ("Aloha Screen Printing") Motion to Dismiss First Amended Complaint, (ECF No. 42), and Defendants RKR Beverage, Inc. ("RKR Beverage"), Chad Robello, and Rodney [*2]  Robello's Motion to Dismiss Amended Complaint, ECF No. 43. See Fed. R. Civ. P. 12(b)(6). Having fully considered the matter, Defendants' motions are due to be granted in part and denied in part.

Background

The Amended Complaint, viewed in the light most favorable to Plaintiff Sandshaker Lounge & Package Store, LCC ("Sandshaker"), alleges the following facts. Sandshaker is a bar located on Pensacola Beach, Florida that was established in 1973. Sandshaker is commonly referred to as the "Sandshaker," "The Shaker Bar," and "The Shaker" by the public. Sandshaker has used the names "Shaker" and "The Shaker Bar" in advertising and other publications. Additionally, "[o]n November 18, 2014, Sandshaker received the USPTO trade mark registration (Registration # 4,641,365) for the 'Shaker' as it relates to the categories of a retail package store and live music events." ECF No. 33 at 3.

RKR Beverage is a Florida Corporation operating two places of business in Pensacola Beach, Florida and Gulf Breeze, Florida under the trade name "Aloha Wine & Liquor." Rodney Robello is the President and Director of RKR Beverage, while his brother Chad Robello is the Vice President and Director. RKR Beverage operates a bar called "The Shaka [*3]  Bar" on premises it leases on Pensacola Beach. On May 29, 2013, Chad Robello registered the fictitious name "The Shaka Bar" with the Florida Secretary of State. Thereafter, "The Shaka Bar" opened for business less than one mile away from The Sandshaker. Rodney and Chad Robello also own and operate Aloha Screen Printing, which they use to produce advertising material for Aloha Wine & Liquor and "The Shaka Bar." Additionally, Rodney and Chad Robello used the marquee and signage at RKR Beverage's Pensacola Beach and Gulf Breeze locations to advertise and promote "The Shaka Bar."

In the Amended Complaint, Sandshaker claims that Defendants have infringed on its trademarks by use of the name "The Shaka Bar." Sandshaker alleges that Defendants were aware that Sandshaker was known in the community as "The Shaker Bar" and that Sandshaker had advertised its business under the trade name "The Shaker Bar." Additionally, Sandshaker alleges that Defendants knew of the monetary value of Sandshaker's trade name, trade dress, and logo. Sandshaker further alleges that Defendants, despite their knowledge of Sandshaker's trade name, marks, and advertising, developed a similar trade name and trade dress. [*4]  Specifically, Sandshaker claims that the name "The Shaka Bar" is almost identical to its trade name "The Shaker Bar" and that the two names sound the same "when pronounced in local parlance." Id. at 6. Additionally, Sandshaker alleges that Defendants developed a logo, signage, t-shirts, and other merchandise for "The Shaka Bar" that appear similar to its logo and marks. Sandshaker claims that the Defendants knew that its creation of similar marks and trade dress would confuse and deceive the public into believing that Sandshaker's and Defendants' separate businesses were the same. See id. Additionally, Sandshaker asserts that Defendants attempted to further confuse the public by holding similar events at the same times that it held events and by obtaining a similar phone number. Moreover, Sandshaker alleges that Defendants' actions have led to actual customer confusion. Specifically, Sandshaker alleges that customers have asked for drinks offered at "the other Shaker Bar," asked if their customer discounts from "the other Shaker Bar" applied to Sandshaker's location, and referred to the two businesses as being related. Id. at 7.

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2018 U.S. Dist. LEXIS 224519 *; 2018 WL 7351689

SANDSHAKER LOUNGE & PACKAGE STORE LLC, Plaintiff, v. RKR BEVERAGE INC, ALOHA SCREEN PRINTING LLC, CHAD K ROBELLO, and RODNEY L ROBELLO, Defendants.

Prior History: Sandshaker Lounge & Package Store LLC v. RKR Bev., Inc., 2018 U.S. Dist. LEXIS 74116 (N.D. Fla., Feb. 28, 2018)

CORE TERMS

alleges, amended complaint, trade dress, infringement, consumer, Defendants', business relationship, marks, tortious interference, Counts, fail to state a claim, Additionally, trademark infringement, damages, customers, injunctive relief, advertising, defamatory, defamation claim, motion to dismiss, community group, special damage, trade name, contributory, media, infringement claim, cause of action, judicial notice, deceptive act, lost profits