Motions to Dismiss

Sink or Swim: N.D. Ga. “Sinks” Hometown Pool & Spa LLC’s Trademark Infringement Suit for Failure to Bring as Compulsory Counterclaim in Earlier-Filed Action

Hometown Pool & Spa, LLC v. Cheek, Civil Action No. 2:22-CV-RWS (N.D. Ga. June 8, 2022)

Plaintiff Hometown Pool & Spa, LLC filed suit against Defendant Doug Cheek on March 30, 2022 in the Northern District of Georgia (Gainesville Division) asserting claims of  (1) federal trademark infringement, unfair competition, and false designation of origin in violation of 15 U.S.C. § 1125(a); (2) violation of the Georgia Unfair Business Practices Act; (3) Georgia common law trademark infringement; and (4) punitive damages.

According to the pleadings, the current dispute between Plaintiff and Defendant stems from the parties’ disagreement over the substance an oral agreement related to the ownership and operation of Plaintiff, a pool and spa installation company. Plaintiff believes that it agreed to make Defendant a franchisee, while Defendant believes he was purchasing Plaintiff outright. Before Plaintiff filed this suit, Defendant previously filed suit against Plaintiff in Jackson County Superior Court on June 9, 2020 asserting various claims including breach of contract. Defendant asserted several counterclaims (including breach of contract) and sought to enjoin Plaintiff from operating any brand associated with Plaintiff. This earlier-filed action is still being litigated. Plaintiff now brings its trademark infringement and unfair business practice claims before the Northern District of Georgia based on its belief that Defendant has been using, and continues to use, Plaintiff’s “Hometown” name and logo to offer nearly identical services.

On May 2, 2022, Defendant moved to dismiss this case on the grounds that Plaintiff failed to raise its asserted claims as compulsory counterclaims in the parties’ Jackson County case. On June 8, 2022, Judge Richard W. Story granted Defendant’s motion to dismiss, holding that the permissibility of Defendant’s use of Plaintiff’s name and logo was the basis of the claims asserted here and in the Jackson County case. In granting Defendant’s motion, Judge Story critiqued Plaintiff’s “kitchen-sink approach” in arguing the impropriety of dismissal, noted that Plaintiff’s characterization of the facts was “largely irrelevant,” and rejected Plaintiff’s implication that Lanham Act claims can only be heard in federal court.  

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