Rosen v. Mystery Method, Inc., No. 07 C 5727, 2008 WL 723331 (N.D. Ill. Mar. 14, 2008) (Kocoras, J.).
Judge Kocoras granted defendants’ Fed. R. Civ. P. 9(b) & 12(b)(6) motion to dismiss plaintiff Rosen’s claims. Rosen, on behalf of himself and others similarly situated, alleged that defendant Mystery Method Corp. (“MMC”), in concert with various other business partners, violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”) by continuing to market MMC’s Mystery Method dating products as endorsed or otherwise approved by the original creator of the Mystery Method, Erik Von Markovick (“EVM”). EVM created a “sophisticated system . . . to help men meet and attract women” known as the Mystery Method. EVM offered personal training in his methods and eventually partnered with MMC to administer the business of his related Mystery Method website. Eventually, EVM left MMC and started his own website
www.venusianarts.com. When EVM left, MMC maintained control of the Mystery Method website.
The Court held that Rosen had not sufficiently pled the predicate act of copyright infringement.* Rosen only pled general allegations:
[T]he predicate acts alleged herein cluster around criminal copyright infringement, trafficking in certain goods bearing counterfeit marks, mail fraud and wire fraud . . . .”
The Court held that these general allegations did not meet the Fed. R. Civ. P. 9(b) heightened pleading requirements for fraud. Rosen did not allege:
That MMC owned a valid copyright for the products or services offered on its Mystery Method website;
That EVM owned a valid copyright covering products or services offered on the Mystery Method website; or
How MMC’s products and services were counterfeit
Furthermore, Rosen’s complaint suggested that MMC was permitted to continue using the Mystery Method name. Rosen alleged that MMC entered an agreement with EVM to develop products and services via the Mystery Method website. And Rosen alleged that MMC maintained control of the Mystery Method website after EVM left MMC.
* RICO requires that defendants have participated in at least two predicate acts. Copyright infringement was one of the predicate acts alleged by Rosen. The Court also dismissed on other RICO-specific grounds, but those will not be discussed here because they are not IP-specific.