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Great Divide Brewing Co. v. Gold Key

United States District Court, D. Colorado

August 31, 2015

GREAT DIVIDE BREWING COMPANY, Plaintiff,
v.
GOLD KEY/PHR FOOD SERVICES, LLC, Defendant

          For Great Divide Brewing Company, Plaintiff: Neal J.G. McConomy, Scott C. Sandberg, Snell & Wilmer, LLP-Denver, Denver, CO.

         For Gold Key/PHR Food Services, LLC, Defendant: Lawrence Michael Brooks, Jr., Wells, Anderson & Race, LLC, Denver, CO; William Rueger Poynter, Kaleo Legal, Virginia Beach, VA.

Page 1138

         ORDER ON MOTION TO DISMISS

         Wiley Y. Daniel, Senior United States District Judge.

         I. INTRODUCTION

         This is a trademark infringement action brought by Plaintiff Great Divide Brewing Company, a brewing company located in Denver, Colorado, against Defendant Gold Key/PHR Food Services, LLC, a company located in Virginia. The lawsuit involves Defendant's alleged infringing use of Plaintiff's registered trademark " GREAT

Page 1139

MINDS DRINK ALIKE" [the " GMDA Mark" ] in the operation of its restaurant in Virginia Beach, Virginia, named Lager Heads. After learning of Defendant's alleged infringement, Plaintiff filed a Complaint alleging trademark infringement, unfair competition -- false designation of origin, federal dilution, common law unfair competition, common law trademark infringement, and deceptive trade practices. (ECF No. 1.)

         On February 19, 2015, Defendant filed a Motion to Dismiss for Lack of Personal Jurisdiction. Plaintiff filed a response in opposition to the motion on March 10, 2015, along with a Motion for Jurisdictional Discovery which was referred to Magistrate Judge Wang. Defendant filed a reply to the motion to dismiss on March 17, 2015.

         On June 11, 2015, Magistrate Judge Wang granted in part Plaintiff's Motion for Jurisdictional Discovery. She allowed " [l]imited jurisdictional discovery. . . regarding information called for in the response to the motion for discovery including newsletters defendant distributes, number of sales to residents in Colorado, and amount and type of sales in Colorado and the contour and nature of the website as it relates to people in Colorado." (ECF No. 35.) Plaintiff was then granted leave to supplement its response to the Motion to Dismiss, which supplement was filed on July 21, 2015. Defendant filed a response to the supplement that same day.

         Defendant argues in its motion to dismiss that Great Divide's Complaint fails to allege sufficient facts from which the Court can assert personal jurisdiction over it, as the facts demonstrate that Defendant has no contacts with the state of Colorado. Thus, Defendant asserts that Plaintiff cannot show that it has the requisite minimum contacts to establish personal jurisdiction in Colorado, such that forcing it to litigate in this foreign jurisdiction would be unreasonable, unduly burdensome, and would offend the traditional notions of " fair play and substantial justice" . Defendant also asserts that there is no evidence that it knew of the asserted marks prior to receiving a cease and desist letter from Plaintiff. Plaintiff contends, on the other hand, that Defendant has subjected itself to specific personal jurisdiction in Colorado through its website and other intentional actions, and that the motion to dismiss should be denied.

         II. FACTS

         According to the Declaration of Robert Howard, Defendant's Chief Investment Officer [" Howard Decl." ], Defendant is a Virginia limited liability company with its principal place of business and only office in Virginia Beach, Virginia. (Howard Decl., ¶ 2, Ex. A to Def. Gold Key/PHR Food Services, LLC's Mot. to Dismiss for Lack of Personal Jurisdiction [" Mot. to Dismiss" ].) Defendant's sole business operation is to operate a few restaurants in Virginia Beach, Virginia. ( Id., ¶ 3.)

         Defendant has no restaurant locations in Colorado. (Howard Decl., ¶ 4.) It is not licensed to do business in Colorado. ( Id., ¶ 5.) Defendant does not file tax returns in Colorado. ( Id., ¶ 6.) It does not maintain any offices in Colorado. ( Id., ¶ 7.) Defendant does not keep any bank accounts in Colorado. ( Id., ¶ 8.) Further, it does not own any land or personal property in Colorado. ( Id., ¶ 9.)

         Defendant does not advertise to Colorado residents, and does not sell any goods or provide any services in Colorado. (Howard Decl., ¶ 19.) It does not have agents in Colorado, Colorado employees, or warehouse goods in Colorado. ( Id., ¶ ¶ 10-12.) Defendant also does not sell any goods or provide any services in Colorado or have (1) a Colorado mailing address or telephone number, (2) Colorado sales representatives,

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or (3) any contracts with any entities in Colorado. ( Id., ¶ ¶ 13-17.)

         Defendant uses the allegedly infringing marks GREAT MINDS EAT AND DRINK ALIKE and GREAT MINDS DRINK ALIKE exclusively in connection with the operation of its Lager Heads restaurant, whose only location is in Virginia Beach, Virginia. (Howard Decl.,¶ 18.) Defendant does not advertise or promote its Lager Heads restaurant in Colorado, or anywhere outside of Virginia. ( Id., ¶ 19.) It derived 100% of its revenues in 2014 from operation of its restaurants in Virginia Beach, Virginia. ( Id., ¶ 20.)

         Plaintiff does not dispute the above facts. It notes the following additional facts, which are not disputed by Defendant.[1] Plaintiff is a Colorado corporation that brews and distributes craft beer. (Pl. Great Divide Brewing Co.'s Resp. to Def. Gold Key/PHR Food Services, LLC's Mot. to Dismiss for Lack of Personal Jurisdiction [" Resp." ], Ex. B, Aff. of Brian Dunn [" Dunn Aff." ], ¶ ¶ 2-3.) Plaintiff has operated and been headquartered in Denver, Colorado since its formation in 1994, its financial accounts are in Colorado, and all but three of its employees reside in Colorado. ( Id., ¶ ¶ 3-6.)

         Since 1996, Plaintiff has maintained a website at greatdivide.com that informs the general public of its products, its ownership and use of the GMDA Mark, and the location of its headquarters, brewery, and taproom in Denver. (Dunn Aff., ¶ 7.) Plaintiff sells clothing and merchandise containing the GMDA Mark both at its Denver, Colorado headquarters and through its internet website. ( Id. ) It distributes its beer, clothing, and merchandise -- all containing the GMDA Mark -- throughout the world, including the United States and Sweden. ( Id., ¶ ¶ 7-8.) As part of its branding, Plaintiff suggests food pairings for each of its beers on its labels. ( See Resp., Ex. C, Colette Label.)

         In 2002, Plaintiff registered the GMDA Mark as a U.S. Trademark with Registration No. 2,557,039. (Dunn Aff., ¶ 11.) On March 1, 2008, the U.S. Patent & Trademark Office issued a Notice of Acceptance for the GMDA Mark. ( Id., ¶ 12.) Plaintiff began distributing its products in the Virginia Beach, Virginia area in 2004. ( Id., ΒΆ 10.) Currently, Plaintiff's products with the GMDA mark are available at numerous physical locations within five (5) miles of Defendant's Lager Heads' restaurant. ( ...


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