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The Preston Partnership, LLC v. ADG Design Studio, LLC

United States District Court, N.D. Georgia, Atlanta Division

August 17, 2017

THE PRESTON PARTNERSHIP, LLC, Plaintiff,
v.
ADG DESIGN STUDIO, LLC, ATLANTA DESIGN GROUP, INC., CHANDRA CHERRY, and MARK DARNELL, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff The Preston Partnership, LLC's (“Plaintiff” or “Preston”) “Emergency Motion for Temporary Restraining Order and Injunctive Relief” [3] (“Motion for TRO”).

         I. BACKGROUND

         Preston is an architectural and interior design firm located in Atlanta, Georgia. (Compl. ¶ 9). Preston has a nationwide portfolio of mid- to large-scale multifamily and mixed-use projects. (Id.).

         Defendant Chandra Cherry (“Ms. Cherry”) is an interior designer. From March 1, 2006, to March 31, 2017, Ms. Cherry worked at Preston as a Principal of Interior Design. (Id. ¶ 10).

         In April 2017, Ms. Cherry and three (3) other former Preston employees joined ADG Design Studio, LLC (“ADG Studio”), a newly-created division of Defendant Atlanta Design Group, Inc. (“Atlanta Design Group”). (Id. ¶ 11; Tr. at 32, 35). Ms. Cherry is a Managing Partner of ADG Studio and Atlanta Design Group. (Compl. ¶ 11). Defendant Mark Darnell is the Managing Member of ADG Studio and the President of Atlanta Design Group. (Id. ¶ 5).

         In July 2017, ADG Studio launched its website, studio.atldesigngroup.com (the “Website”). (Tr. at 13; see also Compl. ¶ 12).[1] The Website contains photographs of interior design projects that were completed by Ms. Cherry, along with other Preston employees, while Ms. Cherry worked at Preston (the “Photographs”). (Tr. at 8). The Photographs appear on the Website: (1) on the homepage, as sliding images moving across the screen; (2) as a collection of thumbnail images under the main “Portfolio” page; and (3) individually, in larger format, when selected from the “Portfolio” page. In small, white letters on the bottom right corner of the Photographs is a statement which reads: “Work done while Principal at The Preston Partnership.” Plaintiff asserts that this statement is false because neither ADG Studio nor Atlanta Design Group was ever a Principal at Preston. Plaintiff asserts further that the small text, coupled with the images sliding across the screen, make the statement “indecipherable.” (Compl. ¶ 15; Tr. at 8-10).

         Plaintiff also alleges that the design of the Website is misleading because the Website does not contain a section highlighting Ms. Cherry's personal portfolio of work. Rather, the Photographs are represented as showing ADG Studio's portfolio of work, when in fact ADG Studio-a newly created company-does not have a portfolio of work. (Compl. ¶ 16; Tr. at 7-8, 10).

         On July 12, 2017, Robert Preston (“Mr. Preston”), President of The Preston Partnership, sent Ms. Cherry an email, asserting that the Photographs on the Website were misleading and asking that they be removed. (Id. ¶ 18).

         On July 21, 2017, Preston's counsel sent Ms. Cherry a letter demanding that ADG Studio “cease and desist the unauthorized representation of Preston's work on the ADG Studio website.” (Id. ¶ 20). Mr. Darnell and three other ADG Studio employees were copied on the letter. Plaintiff alleges that Defendants failed to respond to Plaintiff's communications.

         On July 27, 2017, Plaintiff filed its Complaint [1], asserting claims for violation of the Lanham Act, 15 U.S.C. § 1125(a), for false designation of origin of services; violation of the Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-372 (Count II); injunctive relief (Count III); and attorneys' fees (Count IV).

         On July 28, 2017, Plaintiff filed its Motion for TRO under its Lanham Act claim, seeking to enjoin Defendants (1) from displaying any photographs on the Website depicting Plaintiff's interior design work, and (2) from misrepresenting the origin of the Photographs in a way that is likely to cause confusion as to the origin of the work.

         On August 9, 2017, the Court conducted a hearing on Plaintiff's Motion for TRO. At the hearing, Mr. Preston stated that having photographs of Preston projects on ADG Studio's Website “is very deceiving because it gives the impression that ADG has a history very similar to what our history is. It gives the clear impression that those projects were done . . . by ADG when obviously they were not. And I think it gives them a false portfolio of work when really they obviously don't have a portfolio of work because they are a start-up company.” (Tr. at 8). Mr. Preston testified that he “think[s] there will inevitably be confusion that those projects [in the Photographs on the Website] were done by ADG and not by Preston.” (Tr. at 20). Mr. Preston admitted, however, that he is not aware of any complaints from prospective or existing clients that the projects depicted in the Photographs on the Website were completed by ADG, and not Preston, and he does not expect to know of clients that have engaged ADG because of their portfolio of work. (Tr. at 19-20). Mr. Preston also stated that he has not lost any business as a result of people seeing the Photographs on the Website and being drawn to ADG for design work. Mr. Preston testified:

No, I can't sit here and say that I have lost business. I'm not aware that I have lost business. But, again, I don't know ...

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