MEMORANDUMOPINION & ORDER On February 9, 2018, Defendants moved to dismiss the second amended complaint (“SAC”) in this case. Dkt. No. 47. For the following reasons, Defendants’ motion is denied.I. BackgroundOn a Rule 12(b)(6) motion, a court must take the facts alleged in the complaint as true and draw all reasonable inferences in plaintiff’s favor. See Gatt Commc’ns, Inc. v. PMC Assocs., L.L.C., 711 F.3d 68,74 (2d Cir. 2013). Accordingly, the following statement of facts is drawn from the second amended complaint.Plaintiff International Council of Shopping Centers, Inc. (“ICSC”) is a trade organization that works to further the interests of the shopping center industry. SAC at 1. ICSC has over 70,000 members in over 100 countries. SAC at 7. ICSC works to advance the shopping center industry through educational programs, meetings, and conferences. SAC at 7. ICSC holds an annual convention in Las Vegas, Nevada, known as “RECon.” SAC at 8. ICSC has registered various trademarks on the words “ICSC” and “RECon,” SAC at 1, 13. ICSC advertises RECon and other events through its website and through emails to its members and prior event attendees. SAC at 9.Defendant Info Quarter, LLC (“Info Quarter”) is a Delaware limited liability company. SAC at 5. Defendant Sankaip Shettar is citizen of India and is the proprietor of Defendant Info Quarter. SAC at 6. And “[u]pon information and belief, Mr. Shettar operates an offshore data mining business that sells inferior data products, including marketing contact lists, to primarily U.S. buyers and has used Info Quarter, LLC for the purpose of accepting payment from such buyers where the buyers require an IRS Form W-9 to pay a third-party. Further, upon information and belief, Mr. Shettar has maintained Info Quarter, LLC as an undercapitalized entity to avoid judgments by dissatisfied buyers and U.S. regulators.” SAC at 41.According to the second amended complaint, third parties, including Defendants, have “sought to capitalize on ICSC’s brand recognition by contacting ICSC members and event attendees with sales solicitations.” SAC at 11. sSAC at 11. The emails sent by these third parties regularly use “ICSC” and “RECon” in the body and subject lines, and their use is not authorized. SAC at 12. ICSC regularly receives inquiries from its members and event attendees seeking clarification about whether ICSC is affiliated with these third party emails. SAC at 14. Some of these third party emails are sent by Defendants. SAC at 14.On May 9, 2017, an ICSC member received an email from “Simon Williams” offering to sell “RECon – ICSC Leasing Mall & Trade Expo 2017 Attendee business contacts.” SAC at 15. The subject line was “RECon – Attendees List.” SAC at 15. “Further investigation revealed that Defendant Info Quarter, LLC was using Simon Williams to generate leads, which were followed up on by an agent or employee of Info Quarter, LLC identifying himself as ‘Patrick Hopkins.’ Patrick Hopkins continued using the same email thread begun by Simon Williams to sell a purported list of ICSC event attendees, which included the ‘ICSC’ and ‘RECon’ trademarks.” SAC at 16. Patrick Hopkins was a “false identity being employed by Defendant Sankalp Shettar and/or his agents or employees to conduct business.” SAC at 17.According to the second amended complaint, “Defendants, either directly or through employees or agents, registered for an ICSC membership in order to access the ICSC member directory. The directory can only be accessed by ICSC members with a user name and password. Defendants then scraped the directory for member contact information, which they used to send spam emails to ICSC members offering to sell ICSC member and/or event attendee lists.” SAC at 18. The registration process requires applicants to agree to ICSC’s Terms and Conditions for Membership. SAC at 19. The Terms and Conditions requires members to refrain from using the “ICSC name in any matter that implies ICSC approval…[and the] ICSC name and logo may not be used in any other manner without the prior written consent of ICSC.” SAC at 20. The Terms and Conditions also state: “The ICSC Membership Directory is proprietary…You are prohibited from copying, reproducing, selling or distributing the ICSC Membership Directory in whole or part.” SAC at 21. Entities register through ICSC’s website. See SAC at 22. Defendants also registered for ICSC events and agreed to the Event Registration Terms and Conditions. SAC at
26, 72. By accessing the membership and event registration through the ICSC website, Defendants agreed to the website’s Terms and Conditions. SAC at 30 (“By accessing and using the Web Site, User accepts and agrees to be bound, without modification, limitation or qualification, by these Terms.”).Plaintiff alleges six causes of action in the second amended complaint: (1) Trademark Infringement under Section 32(1) of the Lanham Act (2) False Designation of Origin and False Representations in Commerce Under Section 32(1) of the Lanham Act (3) Unfair Competition Under Section 43(a) of the Lanham Act (4) Common Law Unfair Competition and Trademark Infringement (5) Unjust Enrichment and (6) Breach of Contract. SAC at
