Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

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

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

January 5, 2018




         This matter is before the Court on the Motion of Defendants ADG Design Studio, LLC, Atlanta Design Group, Inc. (collectively “ADG”), Chandra Cherry and Mark Darnell (collectively “Defendants”) to Dismiss Count I of the Complaint and Dismiss All Remaining State Law Claims [17].

         I. BACKGROUND

         Plaintiff The Preston Partnership, LLC's (“Plaintiff” or “Preston”) is an architectural and interior design firm located in Atlanta, Georgia. ([1] ¶ 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). Ms. Cherry is a Managing Partner of ADG Studio and Atlanta Design Group. (Id. ¶ 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, (the “Website”). (Id. ¶ 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”). (Id. ¶ 13). 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. (Id. ¶ 13) 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.” (Id. ¶ 14). 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.” ([1] ¶ 15).

         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. ([1] ¶ 16).

         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. (Id. ¶ 21).

         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 (Count I); 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 a Motion for Temporary Restraining Order (“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.” ([16] 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.” ([16] 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. ([16] 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. ([16] at 21-22).

         The Court denied Plaintiff's Motion for a TRO on August 18, 2017. ([15]). The Court found that “Plaintiff fails to allege facts to support that Defendants' allegedly false designation is likely to cause consumer confusion.” ([15] at 7, 12). The Court also found that “Plaintiff further fails to allege facts to support that it was harmed by Defendants' allegedly false designation.” (Id. at 10, 12). Based on those deficiencies, the Court concluded that “Plaintiff is not likely to succeed on the merits of its Lanham Act claim.” (Id. at 12).

         Three days later, on August 21, 2017, Defendants filed the instant Motion to Dismiss [17]. Defendants argue that “Preston failed to sufficiently allege any of the four elements necessary for a false designation of origin claim.” ([17-1] at 1). In particular, Defendants maintain: (1) that the “goods” Preston seeks to protect, i.e. the Photographs, are owned by Defendants and the Supreme Court's decision in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) bars Lanham Act protection for the ideas embodied in the photographs; (2) that Preston failed to sufficiently allege how the photographs were falsely designated; (3) that Preston failed to sufficiently allege that consumer confusion is likely; and (4) that Preston failed to sufficiently allege specific instances of harm resulting from the alleged false designation.

         II. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.