ORDER
THIS CAUSE is before the Court on Defendants’ November 8, 2004 Motion to Dismiss [DE-7], and having considered Plaintiffs (“Rhino”) Dеcember 8, 2004 Opposition [DE-10] and Defendants’ (“DBD” and “EMS”) December 21, 2004 Reply [DE-12], the Court finds as follоws:
1. On September 23, 2004, Rhino filed a four-count Complaint alleging Trademark Infringement. Federаl Unfair Competition, Common Law Unfair Competition, and a Violation of Florida’s Deceptive and Unfair Trade Practices Act (“FDUT-PA”). [DE-1], The Complaint alleges that Rhino licеnses its trademarks and services to gentlemen’s clubs. DBD owns such a club at 3411 North Federal Highway in Oakland Park, Florida. EMS licenses its trademarks and services. On October 1, 2003, Rhino and DBD entered into a *1364 Trademark License Agreement. Rhino paid for the installation of distinctive trаde dress. Then in August, 2004, DBD entered into a license agreement with EMS (the Scores License Agreement). Although DBD replaced much of the Rhino logos, many remained on match books, ashtrays, cocktail napkins, wall photographs and other signs. An advertisement ran in thе Sun Sentinel reading “Scores at Spearmint Rhino.” Rhino alleges that, having breached thе license agreement, DBD continues to illegally use Rhino’s trade dress and marks inside the club. The trade dress includes leopard pattern carpeting; marble wood design wall paint; black, rounded, barrel shaped chairs; a gallery of ornate framed nudе photos; waitresses dressed in black shorts, tuxedo vests, cuff links and bow ties, displaying Rhino marks; and doormen dressed in formal attire. Rhino’s marks are protected under Trademark Registration Number 2712739.
2. Defendants’ Motion to Dismiss contains five allegations:
A. Lack of Personal Jurisdiction over EMS, a New York corporation.
B. Failure to allege EMS participated in the wrongdoing.
C. Failure to allege that Rhino owns the service mark.
D. Failing to state a cause of action for a trade dress violation in Count Two.
E. State law claims in Counts Three and Four should be dismissed if Counts One and Two are dismissed.
3. The Complaint аlleges jurisdiction in Paragraph 5 where it states that EMS operates, conducts, is engаged in, and carries on a business or business venture in Florida under Section 48.193(l)(a), Florida Statutеs, and is engaged in substantial and not isolated activity in Florida under Section 48.193(2), Florida Statutes. The Complaint does not allege Section 48.193(l)(b) of the Florida Statutes as a basis for long arm jurisdiction. Rhino contends that their failure to cite Section 48.193(l)(b) does not defeat long-arm jurisdiction where they alleged sufficient facts to support a conclusion that EMS committed a tortious act in Florida. The Court agrees.
Burger King Corp. v. Holder,
4. As indicated above, Rhino has alleged that both Defendants engaged in certain acts. These general allegations are sufficient at this stаge of the proceedings. Motions for more definite statement are disfavored.
Eye Care Int’l, Inc. v. Underhill,
5. Rhino has sufficiently alleged ownership of the marks. Moreover, Rhino has alleged thаt the trade dress is not functional. Whether Rhino has to allege that Defendants have сopied every aspect of the trade dress to constitute a violation is not decided by the Court at this time.
Wherefore, it is ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss [DE-7] is DENIED.
DONE AND ORDERED.