§ 1125(c), and federal unfair competition in violation of 15 U.S.C. § 1114, trademark dilution in violation of 15 U.S.C. FOL filed this lawsuit alleging trademark infringement in violation of 15 U.S.C. En Garde is allegedly marketing and selling its wares on social media platforms such as Facebook and Twitter. According to FOL, “En Garde currently operates an online store selling apparel and handbags at and ,” in which Defendant uses its FRUIT OF THE TOMB mark. En Garde has also purportedly begun selling apparel in its locality of Houston, Texas, and has established an online store through Shopify. FOL has alleged that En Garde or someone acting on its behalf has registered the domain name. FOL has filed an opposition with the USPTO Trademark & Appeal Board, which is still pending. ¶ 21 1 (internal quotation marks omitted)). On July 8, 2015, Defendant En Garde, LLC (“En Garde”) filed an intent-to-use trademark application with the USPTO for the word mark FRUIT OF THE TOMB to be used with “clothing, namely, t-shirts, pants, hats, socks, swim suits, and shorts. Its marks include the word marks FRUIT and FRUIT OF THE LOOM, and other related marks with design elements that are used in connection with, inter alia, “clothing or textile goods, including T-shirts, underwear, activewear, and socks. (“FOL”) is a global garment manufacturer which owns various trademarks registered with the U.S. STATEMENT OF FACTS AND CLAIMS Plaintiff Fruit of the Loom, Inc. For the reasons outlined below, Defendant’s Motion to Dismiss is GRANTED, Plaintiff’s Motion for Preliminary Injunction is DENIED AS MOOT, and Plaintiff’s Motion for Leave to File a Sur-Reply is DENIED. EN GARDE, LLC DEFENDANT MEMORANDUM OPINION AND ORDER This matter is before the Court on Defendant’s Motion to Dismiss (DN 15), Plaintiff’s Motion for Preliminary Injunction (DN 4), and Plaintiff’s Motion for Leave to File a Sur-Reply (DN 25). 28 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION CIVIL ACTION NO.
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