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Hayes v. FM Broad. Station Wett(FM)

United States District Court, District of Columbia

March 18, 2013

ALAN J. HAYES, doing business as WETT, Plaintiff,
v.
FM BROADCAST STATION WETT(FM), et al., Defendants

Page 146

For ALAN J. HAYES, doing business as WETT, Plaintiff: Steven Michael War, MCNEELY, HARE & WAR LLP, Washington, DC.

For WITHERS BROADCASTING COMPANY OF BRIDGEPORT, LLC, Defendant: David Ludwig, LEAD ATTORNEY, DUNLAP WEAVER PLLC, Leesburg, VA.

For FM BROADCAST STATION WETT(FM), Defendant: David Ludwig, LEAD ATTORNEY, Ellis L. Bennett, DUNLAP WEAVER PLLC, Leesburg, VA.

OPINION

Page 147

Rudolph Contreras, United States District Judge.

MEMORANDUM OPINION

The plaintiff in this case brings suit against a radio station whose call sign, he claims, infringes on his trademarks. There are difficult questions regarding the viability of that claim and this court's subject matter jurisdiction to hear it, but the plaintiff has not established the court's personal jurisdiction over the defendants. The court will therefore dismiss his case rather than reaching those larger issues.

I. BACKGROUND

Alan Hayes, the plaintiff in this case, alleges that he owns, uses, and has registered a U.S. trademark for " WETT" in the class of telecommunications (that is, international class 38). Am. Compl. ¶ ¶ 9-11. He also claims ownership of a common-law mark for " WETT" for Internet radio broadcasting and radio broadcasting. Id. ¶ 8. Mr. Hayes has his principal place of business in Maryland. Id. ¶ 1.

Mr. Hayes has brought suit against the Withers Broadcasting Company of Bridgeport, LLC (" Withers" ). He alleges that Withers, which is based in Bridgeport, West Virginia, owns a radio station with the call letters " WETT," which broadcasts out of Bridgeport at 104.1 FM. Id. ¶ ¶ 3-4, 25-29. Mr. Hayes has named that radio station as a co-defendant. According to the complaint, Withers has registered the " WETT" call sign with the Federal Communications Commission, and has employed a lawyer based in Washington, D.C. to conduct its business with the FCC. Id. ¶ ¶ 15-22. Mr. Hayes also alleges that Withers operates a website for the radio station, from which users can communicate with station staff, " access Morning Show Prizes," and " purchase discount tickets." Id. ¶ ¶ 28-29. That website is, of course, accessible in the District of Columbia.

Mr. Hayes alleges that Withers and the radio station that it owns have violated his rights in his " WETT" trademark under both the Lanham Act, 15 U.S.C. § § 1051 et seq., and the common law. The defendants have moved to dismiss the complaint for lack of personal jurisdiction and subject matter jurisdiction, improper venue, and failure to state a claim on which relief can be granted. Because the court finds that it lacks personal jurisdiction over the defendants, it need not reach their other arguments.

II. LEGAL STANDARD

The plaintiff bears the burden of establishing personal jurisdiction over each defendant. Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456, 282 U.S. App. D.C. 295 (D.C. Cir. 1990). On a motion to dismiss for lack of personal jurisdiction, a court may consider evidence outside of the pleadings. See Mwani v. Bin Laden, 417 F.3d 1, 7, 368 U.S. App. D.C. 1 (D.C. Cir. 2005). Although the court must resolve any factual discrepancies in favor of the plaintiff, Crane, 894 F.2d at 456, " [b]are allegations and conclusory statements are insufficient." Johns v. Newsmax Media, Inc., 887 F.Supp.2d 90, 2012 WL 3637147, at *2 (D.D.C. 2012); see Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524, 348 U.S. App. D.C. 238 (D.C. Cir. 2001).

III. ANALYSIS

A. Personal Jurisdiction


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