MEMORANDUM OPINION AND ORDER
Tim Flentye and 7703 Sheridan Road Building Corporation d/b/a Flentye Properties (collectively, “Plaintiffs”) filed suit against Michael Kathrein, a/k/a Michael Lee, and Kathrein LLC d/b/a Lee Street Management (collectively, “Defendants”). Plaintiffs’ First Amended Complaint (“Complaint”) alleges: violations of the Anti-Cybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d) (Count I); unfair competition under the Lanham Act, 15 U.S.C § 1125(a) (Count III); unfair competition under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS § 510/1 et seq. (Count IV); defamation (Count II); misappropriation of identity (Count V); and intentional infliction of emotional distress (Count VI). (D.E.15.) 1 *909 The case is before the Court on the motion to dismiss of Michael Kathrein, a/k/a Michael Lee (“Lee”) (D.E.24), and the motion to dismiss and/or motion for a more definite statement of Kathrein LLC (“Ka-threin”), which is alleged to do business as Lee Street Management. (D.E.19.) For the reasons stated below, the motions are granted in part and denied in part.
RELEVANT FACTS 2
Plaintiff Tim Flentye (“Flentye”) is a registered agent of Flentye Properties, an Illinois assumed name under which the Flentye family has promoted apartment rental services in Chicago for many years. (Id. ¶¶ 2, 11, 54.) Lee is the sole proprietor of Lee Street Management (“Lee Street”), an unregistered entity promoting apartment rental services in the Chicago area. (Id ¶ 3.) Plaintiffs and Defendants rent similar apartments in the Rogers Park neighborhood of Chicago, and therefore are competitors. (Id ¶ 9-10, 16-18.)
Lee Street promotes apartment rental services utilizing real estate owned by Ka-threin. (Id. ¶ 3.) The Complaint refers to Kathrein as a “corporation organized under the laws of Delaware.” (Id.) Plaintiffs allege that Lee devised Kathrein for the sole purpose of holding title to real estate through which Lee operates Lee Street’s activities. (Id. ¶ 4.)
Plaintiffs aver that they have invested considerable time and resources in the service marks “Tim Flentye,” “Flentye,” and “Flentye Properties.” (Id. ¶¶ 11-14.) Plaintiffs use the marks to promote their real estate business, and through such use and related commercial activities, Plaintiffs have “acquired a favorable and extremely valuable reputation.” (Id. ¶ 14.)
Plaintiffs allege that Defendants registered the domain name flentye.com on September 20, 2000. 3 (Id. ¶ 20.) In April of 2003, Defendants registered the domain names timflentye.com and flentyeproperties.com. (Id. ¶ 21-22.) In March of 2006, Plaintiffs contacted Lee and Lee Street through their attorneys and demanded that they cease and desist the use of these three domain names. (Id. ¶ 25.) On April 7, 2006, “Plaintiffs filed a UDRP complaint against Defendants with [the] ICANN domain arbitration provider the National Arbitration Forum.” (Id. ¶ 26. 4 ) After both plaintiffs and defendants in the arbitration proceeding participated in selecting a three-member UDRP panel, the panel issued a unanimous decision ordering that timflentye.com, flentye.com, and flentye-properties.com be transferred from Defendants to Plaintiffs. (Id. ¶¶ 28-29.) The decision, issued on May 17, 2006, held that: Plaintiffs owned trademark rights to the marks; all three of the domain names were either identical to, or confusingly similar to, Plaintiffs’ marks; Defendants had no rights or legitimate interest in any of these domain names; and the domain names were registered and used by Defendants in bad faith. (Id. ¶ 29.) On June 7, 2006, less than two months after this decision, Defendants allegedly registered the domain name timflentye-not.com, and used it to direct users to their own website, leestreet.com. (Id. ¶¶ 23, 43-44.) On May 30, 2006, Lee filed a “complaint for judicial *910 review and petition to vacate arbitration award,” in the Circuit Court of Cook County. (Id. ¶ 42; D.E. 19-2 at 4.)
Plaintiffs also allege that Defendants have wrongfully used the Flentye name through the use of a “meta tag.” (Id. ¶¶ 30-35.) Meta tags are key words associated with a website’s subject matter that can be embedded into the source code of a website to direct searchers of these keywords to the website. (Id. ¶ 30.) Plaintiffs allege that Defendants are using the meta tag “Flentye,” on a website they own, apartmentzone.us, to direct users to lees-treet.com. (Id. ¶¶ 31-33.) Both apartment-zone.us and leestreet.com were registered to Lee in 2002 and 2000, respectively. (Id. ¶¶ 34-35.)
In the defamation count, Plaintiffs state that Defendants have published defamatory statements concerning Flentye on the websites timflentye.com, flentye.com, flen-tyeproperties.com, timflentye-not.com, ti-mothyflentye.com, and rogerspark.tv. (Id. ¶ 72.) These websites allegedly include false assertions that “Flentye uses a closed circuit video camera for illegal and/or sexually motivated purposes, ... record[s] activities through [tenants’] bedroom windows at night,” and possesses “illegally obtained recordings” that were recorded in this manner. (Id) Defendants also allegedly published statements that Plaintiffs “ ‘use [Chicago Alderman] Joe Moore as a tool to satisfy [their] own personal, vindictive obsession’ and thus ‘put tenants at risk,’ that Plaintiff Tim Flentye and Aider-man Moore engage in ‘harassment and co-abuse of office,’ and that Plaintiff Tim Flentye lacks an ‘ethical compass.’ ” (Id) Plaintiffs also allege that on their websites, Defendants have published “defamatory assertions that ... Flentye and his family embrace thievery, deviance and racism, as well as profanity-laced depictions of ... Flentye engaging in bestiality, scatology, and other highly defamatory assertions of a sexually repugnant nature.” (Id. ¶ 73.)
Additionally, Plaintiffs allege under their intentional infliction of emotional distress count that Defendants “publish a large color photograph of Tim Flentye’s family cemetery marker,” and that “[t]his photograph includes visible garbage at the base of the ... marker and it is believed to have been photographed by Defendants or its agents.” (Id. ¶ 97.) In the “Misappropriation of Identity” count, Plaintiffs further allege that Defendants employ “numerous e-mail addresses subsuming Plaintiffs name such as ‘timflentye@ gmail.com’ in order to tarnish the goodwill of Plaintiffs.” (Id. ¶ 92.)
Plaintiffs allege that “Defendants use these domain names with the intent to confuse Plaintiffs’ current and prospective customers as to the websites’ source and thus misleadingly divert these consumers to pornographic websites and/or websites wherein Defendants publish materials intended to drive away Plaintiffs’ customers .... ” (Id. ¶ 64.) Plaintiffs allege that in addition to the commercial benefit Defendants enjoy by harming their direct competitor, Defendants also receive money by linking these websites to commercial pornographic websites which pay Defendants for the “hits” generated by Defendants’ websites. (Id. ¶ 65.)
Kathrein has moved to dismiss or, in the alternative, for a more definite statement. (D.E.19.) Lee has also filed a pro se motion to dismiss on behalf of himself and purportedly on behalf of Kathrein. (D.E.24.)
JURISDICTION
The Court has jurisdiction over the Lanham Act and Anti-Cybersquatting Consumer Protection Act claims pursuant to 15 U.S.C. §§ 1125(a) & (d). The court has jurisdiction over the state unfair competition claim under 28 U.S.C. § 1338(b) *911 because the claim is joined with a substantial and related claim under the trademark laws of the United States. See 15 U.S.C. § 1051, et seq. The Court has jurisdiction over the defamation, misappropriation of identity, and intentional infliction of emotional distress claims under 28 U.S.C. § 1367.
STANDARD OF REVIEW
“A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint for failure to state a claim upon which relief may be granted.”
Johnson v. Rivera,
Rule 12(e) provides that “[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.” Fed.R.Civ.P. 12(e). Rule 12(e) and related caselaw make it “plain that the rule is designed to strike at unintelligibility rather than want of detail. If the pleading meets the requirements of Rule 8 ... and fairly notifies the opposing party of the nature of the claim, a motion for a more definite statement should not be granted.”
Wishnick v. One Stop Food & Liquor Store, Inc.,
DISCUSSION
I. Plaintiffs Have Adequately Pleaded a Veil-Piercing Claim As a Basis for Ka-threin’s Liability
Kathrein moves to dismiss the Complaint, and moves in the alternative for a more definite statement under Federal Rule of Civil Procedure 12(e). In so moving, Kathrein claims that Plaintiffs’ Complaint fails to make sufficient specific allegations against Kathrein as a party. (D.E. 21 at 2.)
The Complaint names Kathrein as a party doing business as Lee Street Management.
5
(D.E.15.) The Complaint
*912
further alleges that Defendant Lee “devised the Kathrein LLC entity for the sole purpose of holding title to local real estate through which [he] operates Lee Street Management.”
(Id.
¶ 4.) Kathrein states that it cannot form a responsive pleading because it cannot determine whether Plaintiffs are alleging that Lee conspired with Kathrein to engage in tortious conduct or are asserting a corporate veil-piercing theory.
6
(D.E. 21 at 2.) However, it is well established that “complaints need not set out either legal theories or comprehensive factual narratives.”
Rapid Test Products, Inc. v. Durham School Services, Inc.,
Plaintiffs do not claim to be relying on one, single theory of liability for the claims against Kathrein, but they do identify a piercing-the-corporate-veil or alter ego theory of liability. (D.E. 25 at 3.) To pierce a corporate veil under Illinois law, Plaintiffs must eventually prove that there is “such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, and that adherence to the fiction of separate corporate existence would sanction a fraud or promote injustice.”
Sea-Land Servs., Inc. v. Pepper Source,
Kathrein argues that to the extent the alleged alter ego relationship is premised on fraud, Plaintiffs must satisfy Federal Rule of Civil Procedure 9(b). (D.E. 26 at 4.) However, Rule 9(b) “generally does not apply to piercing allegations.”
Wachovia Securities, LLC v. Neuhauser,
No. 04 C 3082,
Plaintiffs fulfill Rule 8(a) notice pleading standards by alleging that Lee Street utilizes real estate owned by Kathrein, and by alleging that Lee devised Kathrein “for the sole purpose of holding title to local real estate through which [Lee] operates Lee Street Management.” (D.E. 15 ¶¶ 3-4.) Read in the light most favorable to Plaintiffs, this appears to be an allegation that Kathrein is the “alter ego” of Lee Street under a veil-piercing analysis.
See Ishkhanian v. Forrester Clinic S.C,
No. 02 C 9339,
In its reply brief, Kathrein points out that it was not a party to the UDRP arbitration proceeding. (D.E. 26 at 2.) Kathrein claims that “Plaintiffs seek an injunction and damages based on that arbitration proceeding,” and since Kathrein “was not a party in the arbitration proceeding ... Plaintiffs cannot now include [Kathrein] as being the same individual or as having registered and used the domain name.”
(Id.)
Kathrein cites no authority to show that Plaintiffs are precluded from suing Kathrein because it was not a party to the prior arbitration proceedings. Even if Kathrein had support for this contention, the argument would be waived since it was raised for the first time in the reply brief.
See Maclin v. SBC-Ameritech,
No. 05 C 2517,
II. Plaintiffs Have Adequately Stated an ACPA Claim
Kathrein and Lee move to dismiss Plaintiffs’ ACPA claim. (D.E. 15 ¶50.) The ACPA was enacted in 1999 to combat the “deliberate, bad-faith, and abusive registration of Internet domain names in vio
*914
lation of the rights of trademark owners,” a practice also known as cybersquatting.
Virtual Works, Inc. v. Volkswagen of Am., Inc.,
Kathrein argues that Plaintiffs’ ACPA count should be dismissed because “there is no allegation that [Kathrein] has done anything with respect to engaging] in false or misleading activity.” (D.E. 21 at 4.) In this regard, Kathrein appears to be arguing that there is no allegation that Kathrein “registers, traffics in, or uses” the domain names.
See Bird v. Parsons,
Even if there were no allegations that Kathrein registered the website, Plaintiffs have made allegations that Kathrein has engaged in a violation of the ACPA as the alter ego of Lee, as discussed above. (D.E. 15 ¶ 4.) A plaintiff can pursue a trademark infringement claim under a veil-piercing theory,
Bally Schuhfabriken AG v. Bally Manufacturing Corp.,
No. 92 C 0312,
In Lee’s motion to dismiss, he inserts block quotes from ACPA cases,' placing emphasis on the language requiring a “bad faith intent to profit” or the “intent to trade on the goodwill of another’s mark.” (D.E. 24 at 4-5.) In his reply brief, he expands on this point by arguing that the Complaint does not adequately allege an intent to profit, stating that the websites at issue concern a personal dispute, rather than a commercial dispute. (D.E. 27 at 2-3.)
Some courts have held that a plaintiff must allege bad faith to survive a motion to dismiss an ACPA claim.
See V’soske,
Lee appears to be relying heavily on
Lucas Nursery and Landscaping v. Grosse,
Lee also argues that a holding against him on this point “would place an unfair ‘prior restraint’ upon defendant by his status relative to plaintiff,” (D.E. 27 at 3), which the Court interprets as a First Amendment argument.
See, e.g., Tory v. Cochran,
Lee also argues that the ACPA claim is barred by the statute of limitations and/or laches. (D.E. 24 at 5-6.) Since the ACPA is an amendment to the Lanham Act, the Court will analyze these arguments under Lanham Act case law generally.
See Ford Motor Co.,
The Lanham Act does not contain a statute of limitations. However, Lee can rely on the analogous state statute of limitations period “as a baseline for determining whether a presumption of laches exists.”
Hot Wax, Inc. v. Turtle Wax, Inc.,
To establish laches as an affirmative defense, Lee must show (1) Plaintiffs had knowledge of Defendants’ use of an allegedly infringing mark, (2) Plaintiffs inexcusably delayed in taking action with respect to Defendants’ use, and (8) Defendants would be prejudiced by allowing Plaintiffs to assert their rights.
See Superior Paintless,
Since “[t]he defense of laches generally requires a fact-intensive inquiry ... it is usually not amenable to being resolved on summary judgment,”
AutoZone, Inc. v. Strick,
No. 03 C 8152, 2005 WL
*917
2978708, at *4 (N.D.Ill. Nov.3, 2005) (collecting cases), let alone on a motion to dismiss. Lee argues that Plaintiffs “knew or should have known about defendant’s use of the domain names in October 2000.” (D.E. 24 at 6.) However, Plaintiffs have not pleaded themselves out of court on this issue, so this argument is unavailing.
See Superior Pointless,
III. Count III, Federal Unfair Competition under the Lanham Act, Is Sufficiently Pleaded
Lee moves to dismiss Plaintiffs’ Lanham Act claim of unfair competition. (D.E. 24 at 7-11.) To state a claim of unfair competition under the Lanham Act, Plaintiffs must allege that (1) their mark is protectable, and (2) Defendants’ use of the mark is likely to cause confusion among consumers.
See, e.g., Papa John’s Int’l v. Rezko,
Lee argues that “[n]o one in his right mind could believe that defendant’s website ... could create ‘confusion’ among plaintiffs’ alleged customers” because “Defendant’s website is rife with bold disclaimers that the site is owned and operated by ... [Lee].” (D.E. 24 at 7.) These disclaimers, however, are not referred to in the Complaint and cannot be considered on a motion to dismiss. Rather, the Court’s inquiry is “limited to the factual allegations contained within the four corners of the complaint.”
Sotelo v. DirectRevenue, LLC,
Lee also argues that “[a] cursory review of the content of the defendants’ website will show that plaintiffs plainly were not, nor could have been, damaged.” *918 (D.E. 24 at 9.) Once again, the attached printouts from the website cannot be considered. Plaintiffs’ have adequately alleged damages by claiming, for instance, that “Defendants’ use of meta tags and domain names ... misleadingly divert Plaintiffs’ customers and potential customers to websites wherein Defendants make misrepresentations intended to dissuade consumers from doing business with Plaintiffs.” (D.E. 15 ¶ 80.)
Plaintiffs make sufficient allegations in their Complaint to state a claim of unfair competition because they have alleged that their mark is protectable and defendants use of the mark is likely to cause confusion among consumers.
Papa John’s,
In support of the second element (that Defendants’ use of the mark is likely to cause confusion among consumers), Plaintiffs allege that Defendants, who are in the real estate market in the same neighborhood (D.E. 15 ¶¶ 9-10, 16-18), have used the flentye name on a number of websites
{Id.
¶¶ 20-23), and have used at least one of these websites to direct web surfers to Defendants’ website, leestreet.com.
(Id.
¶ 44.) Plaintiffs also allege that Defendants have used the meta tag “Flentye” to direct users to leestreet.com.
(Id.
¶¶ 31-33.) Plaintiffs need not prove the likelihood of confusion until a later stage of litigation, and these allegations are sufficient to put Defendants on notice of the federal unfair competition claim.
See, e.g., Papa John’s,
Lee also moves to dismiss the unfair competition claim on the grounds that it is barred by laches. (D.E. 24 at 10-11.) The unfair competition claim, like the ACPA claim, is based on Defendants’ use of Plaintiffs’ marks on the subject websites. (D.E. 15 ¶¶ 78-83.) Therefore, for the same reasons that the ACPA claim cannot be dismissed based on a laches defense, the unfair competition claim cannot be dismissed on this basis either.
IV. Count TV, The Unfair Competition Claim Under Illinois State Law, Is Sufficiently Pleaded
Lee moves to dismiss Count IV, which is brought under the Illinois Uniform Deceptive Trade Practices Act (“UDTPA”), 815 ILCS 510/1
et seq.
(D.E. 15 ¶ 86.) A plaintiff can state a claim under the UDTPA by alleging that defendants published untrue or misleading statements that disparaged the plaintiffs goods or services.
M&R Printing,
In his reply brief, Lee asserts a First Amendment “prior restraint” defense similar to the argument he makes with regard to the Lanham Act. (D.E. 27 at 8-9.) The UDTPA has been held a constitutionally permissible “regulation prohibiting false, misleading or deceptive commercial speech.”
People ex. rel. Hartigan v. Maclean Hunter Publ’g Corp.,
Lee argues that this count is barred by the statute of limitations. (D.E. 24 at 12.) The statute of limitations, like laches, is an affirmative defense, and Plaintiffs are not required to negate an affirmative defense in the Complaint, although they can plead themselves out of court by alleging facts that demonstrate the claim is time-barred.
See Tregenza v. Great Am. Communications Co.,
V. Count 11, the Defamation Claim, Is Adequately Pleaded
Plaintiffs argue that the defamation claim must be dismissed, or a more definite statement required, because “Plaintiffs discuss general statements made by a Defendant, but nothing more.” (D.E. 21 at 3.) To bring a defamation claim, Plaintiffs are required to plead “the alleged defamatory words published or spoken by the defendant,” but “need not allege the defamatory language verbatim.”
Emery v. Northeast Ill. Reg’l Commuter R.R. Corp.,
No. 02 C 9303,
Plaintiffs have put many of the allegedly defamatory statements in quotation marks. (D.E. 15 ¶ 72.) The statements that are not quotation marks are alleged with sufficient specificity to allow Kathrein to respond.
(Id.
¶ 73.) Plaintiffs identify the websites on which the alleged defamatory statements are published, and specify the nature of the statements that are allegedly “[e]xtreme in both length and pornographic nature.”
11
(Id.)
These alle
*920
gations are sufficient to survive a motion to dismiss.
See Chisholm, v. Foothill Capital Corp.,
Kathrein also moves to dismiss the defamation claim on the ground that the alleged defamatory statements are “[a]t most ... statements of opinion or criticism and are not defamatory.” (D.E. 21 at 5.) The First Amendment protects opinions from being actionable in defamation claims.
Lott v. Levitt,
In support of its argument that the alleged defamatory statements are opinion, Kathrein refers the following allegations in its brief: “That Flentye records the activities of tenants at night, that he possesses illegal video tapes; that Plaintiff Flynte [sic] engages in harassment at the office and lacks an ethical compass.” (D.E. 21 at 5.) The first two statements are certainly “ascertainable, verifiable phenomena,” and therefore potentially actionable.
Patlovich v. Rudd,
Moreover, the Court notes that while the allegation that Flentye engages in harassment is more subjective, it may still be actionable. The idea of objective assessments of “harassment” is not unknown in the
law
— see,
e.g., Harris v. Forklift Systems, Inc.,
Kathrein and Lee both also argue that the defamation claim is time-barred. (D.E. 21 at 7; D.E. 24 at 6-7.) As Ka-threin points out, Illinois has a one year statute of limitations for defamation actions. 735 ILCS 5/13-201;
accord Bakalis v. Bd. of Trs. of Cmty. College Dist. No. 504,
The Complaint does not specify when the defamatory material was first published or when Plaintiffs first discovered it, so Plaintiffs have not pleaded themselves out of court. In addition, Plaintiffs allege that Defendants “have made and continue to make unprivileged publications of false and defamatory statements regarding Plaintiff Tim Flentye and his business.” (D.E. 15 ¶ 72; emphasis added). Since the Complaint does not demonstrate that the claim is time-barred, the motion to dismiss the defamation claim is respectfully denied.
VI. Count VI, The Intentional Infliction of Emotional Distress Count, Is Adequately Pleaded, Although Punitive Damages Are Not Recoverable ■ on This Count Under Illinois Law
Kathrein and Lee also move to dismiss Plaintiffs’ claim for intentional infliction of emotional distress (“IIED”). To state a claim for IIED under Illinois law, Plaintiff must establish that; (1) Defendants’ conduct was extreme and outrageous; (2) Defendants either intended this conduct to inflict severe emotional distress, or knew that there was a high probability that this conduct would cause severe emotional distress; and (3) Defendants’ conduct in fact caused severe emotional distress.
See, e.g., Doe v. Calumet City,
Kathrein and Lee argue that the IIED claim must be dismissed because the conduct alleged is not outrageous as a matter of law. (D.E. 21 at 6.) At the motion to dismiss stage, however, Plaintiffs are “not required to allege facts sufficient to support each element” of an IIED claim.
McLaughlin v. City of Chicago,
No. 04 C 7156,
Although courts have dismissed some claims of IIED based on defamation, “on the ground that the conduct was not ‘extreme and outrageous,’ ”
Cook v. Winfrey,
In addition to the defamation allegations, Plaintiffs support their IIED claim by alleging that Defendants have published a photograph of Flentye’s family cemetery marker with garbage at the base of it. (D.E. 15 ¶ 97.) Furthermore, Defendants have allegedly been trying to harm Defendants’ business by misusing the Flentye name on the internet
(see, e.g., id.
¶ 64), and allegedly continued to misuse the Flentye name even after an arbitration decision in Plaintiffs’ favor.
(Id.
¶¶ 28-29.) When combined with the defamatory allegations, these additional allegations are more than enough to state an IIED claim.
See Graves v. Man Group USA, Inc.,
No. 06 C 3015,
*923
Kathrein and Lee further argue that the IIED claim is time-barred. (D.E. 21 at 8.) The statute of limitations for IIED claims in Illinois is two years.
See Klipfel v. Bureau of Alcohol, Tobacco & Firearms,
No. 94 C 6415,
Kathrein and Lee also argue that Plaintiffs’ claim for punitive damages is improper because Illinois law does not allow an award of punitive damages for an IIED claim. (D.E. 21 at 7.) Kathrein is correct. Under Illinois law, punitive damages are not available for claims of intentional infliction of emotional distress.
See, e.g., Coleman v. Joliet Junior College,
No. 06 C 2135,
VII. Count V, for Misappropriation of Identity, Is Adequately Pleaded
Lee also moves to dismiss Plaintiffs’ claim of “misappropriation of identity.” (D.E. 24 at 12-13.) The appropriation of identity cause of action in Illinois is sometimes referred to as the “right of publicity.”
Blair v. Nevada Landing P’ship,
In 1999, Illinois passed the Right to Publicity Act, 765 ILCS 1075/1
et. seq.,
which “completely replaced the common-law tort of appropriation of likeness.”
Blair,
The Illinois Right of Publicity Act prohibits the use of a person’s identity “for commercial purposes during the individual’s lifetime without having obtained previous written consent.” 765 ILCS 1075/30(a). “Commercial purposes” is defined as “the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods or services, or (iii) for the purpose of fundraising.” 765 ILCS 1075/5. “Identity” is defined as “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.” 765 ILCS 1075/5.
Plaintiffs have stated a claim under the Right to Publicity Act, as they allege that Defendants have appropriated the Flentye name through the use of domain names and meta tags for commercial gain. (D.E. 15 ¶ 89.) In addition, Plaintiffs allege that Defendants use “numerous e-mail addresses subsuming Plaintiffs name such as ‘timflentye@gmail.com’ in order to tarnish the goodwill of Plaintiffs.”
(Id.
¶ 92.) These allegations are sufficient to put Defendants on notice of Plaintiffs’ claim.
Accord, e.g., Toney v. L’Oreal USA, Inc.,
Lee argues that he is only engaging in criticism, which would not be a commercial use. (D.E. 24 at 13; D.E. 27 at 8.) The Right to Publicity Act does not apply to the “use of an individual’s identity for noncommercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign,” 765 ILCS 1075/35(b)(2). However, Plaintiffs allege that Defendants are using the Flen-tye name for commercial purposes, and the Court must accept that allegation as true for purposes of the motion to dismiss.
Lee also argues that the appropriation of likeness claim is barred by the statute of limitations. (D.E. 24 at 13.) Again, this matter relates to an affirmative defense that typically cannot be resolved on a motion to dismiss. The Court cannot say with confidence that Plaintiffs have pleaded themselves out of court on limitations grounds as to this count. Accordingly, dismissal under Rule 12(b)(6) is not appropriate.
CONCLUSION
For the reasons stated above, Defendants’ motions to dismiss and Kathrein’s motion for a more definite statement are denied, with the of the exception of Defendants’ motions to dismiss the prayer for punitive damages on the IIED claim.
Notes
. The relevant docket entries are cited as "D.E_"
. The facts are taken from the Complaint. (D.E.15.) The Court accepts the allegations as true, as precedent instructs, for present purposes.
. Domain names facilitate the public’s access to websites, and serve as the primary identifier of the source of information, products, or services. (Id. ¶ 19.)
.Although not specified in the pleadings, "UDRP" is understood to refer to the Uniform Domain Name Dispute Resolution Policy adopted by the Internet Corporation for Assigned Names and Numbers ('ICANN”). See http:// www.icann.org/udrp/udrp-policy-24oct 99.htm.
. Kathrein argues that since the “doing business as” language (abbreviated "d/b/a”) appears in the Complaint’s caption rather in the enumerated paragraphs, it is not a factual allegation and therefore need not be accepted as true. (D.E. 26 at 5) (citing
Kraemer v. Elmira Auto Paint Supplies, Inc.,
. Kathrein claims that, besides being insufficient, the allegations in the Complaint are wrong. (D.E. 21 at 2.) Specifically, Kathrein states that it is a corporation, and that it is not the same as, or doing business as, Lee Street.
(Id.)
The Court disregards these aver-ments, as all allegations in the Complaint must be accepted as true.
See McMillan v. Collection Prof'ls, Inc.,
. The case Kathrein cites for this proposition,
Lincoln Laboratories v. Savage Laboratories,
. Moreover, it is unclear at best, from Ka-threin’s perspective, whether the relief sought is predicated on the result of the arbitration, at least in whole. In the face of such factual ambiguity, dismissal under Rule 12(b)(6) is inappropriate.
. Defendants argue that Plaintiffs’ allegations concerning Lee’s stale court lawsuit seeking review of the arbitration decision demonstrate that Kathrein has not registered or used the domain names in question. (D.E. 19 ¶ 11.) With all respect, the Court fails to see how Lee's state court suit necessarily proves anything with regard to Kathrein's conduct. Kathrein could have been the alter ego of Lee and Lee Street all this lime without Plaintiffs’ knowledge, which would explain why Ka-threin was not a party to the arbitration proceeding and Lee’s subsequent petition for review.
. At a minimum, Defendants cite no authority directing a different result, so dismissal at the threshold of the suit is unwarranted.
. In their response, Plaintiffs state that “[t)he additional defamatory statements, the *920 profane accusations of sexual deviance, will be presented under protective seal.’’ (D.E. 25 at 9.) Although this assurance is not necessary to survive the motion to dismiss, it does explain why these statements are not presented in quotation marks.
. In support of its motion to dismiss the IIED claim, Kathrein states that "one of the Plaintiffs, 7703 Sheridan Road Building Corp., is not capable of suffering mental anguish because it is a corporation.” (D.E. 21 at 6-7) (citing
Brown & Williamson Tobacco v. Jacobson,