TalleyUp LLC et al. v. Tally Up LLC et al. (D. Mass. 22-cv-30012).

Le Marr Talley filed a pro se complaint on behalf of himself, TalleyUp LLC, John Turgeon and Chaedyn Munn against Tally Up LLC, alleging a variety of trademark infringement theories.  The individual plaintiffs are all shareholders of TalleyUp, which was formed in 2020 and alleges to have registered a domain address of www.talleyup.online.  According to the complaint, TalleyUp lost a potential investor when the investor was directed through a Google search to Defendants’ www.shoptallyup.com rather than Plaintiffs’ site, which was registered by co-defendant Leah Hampton.  Both entities sell clothing, with the Plaintiffs selling a variety of clothing and the Defendants selling women’s yoga clothing.  In June 2021, TalleyUp obtained a registration of a design mark on “TALLEYUP in which the base of the “Y” forms one of the vertical portions of the “U” and the other vertical portion of the “U” co-forms the vertical portion of the “P” and the upper end terminated in an upward-pointing arrow. 

Talley asserts that the “shoptallyup” is sufficiently similar to its mark to cause confusion and to dilute the TalleyUp mark (despite suggesting that TalleyUp has not yet realized any internet sales).  Talley says that he made his objections known through a series of YouTube videos, and that he spoke with one of the defendants who indicated that the defendants would not stop using their internet address. 

The complaint is not a model of clarity (for example, it lacks formal claims), but it appears that TalleyUp asserts willful trademark infringement, counterfeiting, defamation, dilution, “business identity theft,” trade secret misappropriation, “intellectual property theft,” trade dress infringement, and a variety of other claims (many of which appear to be not legally cognizant).  TalleyUp asks for a permanent injunction, seizure of the goods of the defendant,

Among the many problems with the complaint, Talley acknowledges that the mark is based on his family surname, which would typically require proof of acquired distinctiveness – perhaps the inclusion of the “Up” part of the mark is enough to bring it out of being primarily a surname.  The complaint acknowledges that no internet sales had been made by the plaintiffs, which suggests that the mark has not had a bona fide use in commerce as of yet (and should defeat any dilution claim under the Lanham Act).  One of the plaintiffs is identified as an eight-year-old child, who would not seem to have legitimate standing in the case.  Despite the lack of sales and the relatively modest levels of investment in TalleyUp, the plaintiffs ask for $7 million in punitive damages, $2 million in compensatory damages, and $1 million in “pro se litigation fees.”  Finally, while Talley (the sole signatory to the complaint) can represent himself pro se, he as a non-lawyer cannot represent the other individual defendants or the LLC (which as a corporation also cannot represent itself).  These deficiencies highlight the risks of appearing without representation in court.  Judge Mastroianni has the case.