Asher Worldwide Enterprises LLC v. Housewaresonly.com Inc., No. 12 C 568, Slip Op. (N.D. Ill. Aug 26, 2013) (Durkin, J.).
Judge Durkin denied the individual defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss the individual defendants in this Lanham Act and copyright case involving defendants allegedly infringing plaintiff’s copyrights by using plaintiff’s copyrighted product descriptions regarding kitchen and restaurant equipment. Plaintiff’s “conclusory” statements regarding the individual defendants’ control of defendant Housewaresonly.com made the motion a “close call.” But plaintiff’s additional statements in its opposition brief, which the Court could consider because they were consistent with the complaint, were sufficient to maintain the complaint. The additional statements focused upon the extent of the alleged copying and the individual defendants’ alleged shutting down of the company and relocating, presumably to avoid suit.
The Court also noted that it would be inefficient to dismiss the complaint without prejudice to refile and allow plaintiff to replead including the additional facts when the Court had already held that the additional facts were sufficient.