Kraljevich v. Courser Athletics, Inc. et al. (22-cv-11430).

In November 2021, shoe designer John Kraljevich filed suit in the Southern District of New York, accusing Courser Athletic and three individuals who run Courser of copying his copyrighted shoe designs.  Kraljevich says that he and one of the named individuals, Michael Petry, worked together for a third-party footwear brand in the mid-2000’s, and that they had remained in touch since then.  In 2018, Kraljevich and Petry decided to co-found a new brand of shoe to be known as COURSER, with the shoes to be designed by Kraljevich.  He says that his designs were not works made for hire, as he was not an employee of the new company and had no written agreement with the company that would make the designs works made for hire.  He further alleges that he became an employee of Courser in the summer of 2019, and that from then on any designs would be works made for hire under the employment agreement.  He says that at the end of 2019, when the first design was ready to go to market, the three individual defendants forced him out of the business.  He asserts that the shoe sold by Courser infringed his copyright in the design.

Kraljevich settled the claims against the company and one of the named defendants, but the other two defendants did not answer the complaint or take part in the settlement discussions.  They subsequently asserted failure of service and moved to dismiss the case.  Pursuant to a forum selection clause in the employment agreement, the case was instead transferred to the District of Massachusetts in August 2022, after which another motion to dismiss was filed. 

Judge Burroughs has granted the Defendants’ motion to dismiss.  She first rejected Kraljevich’s argument that the Massachusetts 12(b)(6) motion was a procedurally improper second bite at the dismissal apple, noting that the New York court had not denied the New York dismissal, but instead had not reached  the issue due to the transfer.  Substantively, the sole remaining claims were vicarious and contributory copyright infringement, based on pleadings that the two individuals “played a significant role in the direct infringement” and  were” a moving, active, conscious force behind” the alleged infringement.  Judge Burroughs determined that the facts as alleged failed to identify any specific actions to the two individual defendants, thus failing to give fair notice of the claims against them and the grounds on which the claims rested, applying the Twombly pleading standard.  Accordingly, those claims were dismissed.