Davidson v. Maraj - Motion to Dismiss II

7/27/2019 Davidson v. Maraj - Motion to Dismiss II

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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

TERRENCE DAVIDSON,

Plaintiff,

vs.

ONIKA MARAJ, an individual,and PINK PERSONALITY, LLC,a Delaware limited liability company,

Defendants.

Case No.1:14-CV-00507-RLV

DEFENDANTS MOTION TO DISMISS THE

AMENDED COMPLAINT UNDER FED. R. CIV. P.

12(b)(6), OR FOR A MORE DEFINITE STATEMENT UNDER FED.

R. CIV. P. 12(e), IF ANY CLAIM SURVIVES THIS MOTION TO DISMISS

COME NOW Defendants Onika Maraj and Pink Personality, LLC (Pink)

(collectively, the Defendants) and hereby submit Defendants Motion to Dismiss

The Complaint Under Fed. R. Civ. P. 12(b)(6), Or For A More Definite Statement

Under Fed. R. Civ. P 12(e), If Any Claim Survives This Motion To Dismiss (the

Case 1:14-cv-00507-RLV Document 19 Filed 07/22/14 Page 1 of 6


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against Defendants under Fed. R. Civ. P. 12(b)(6) for at least the following

reasons:

Plaintiffs alleged wig designs are not novel and thus cannot

support any cause of action based on any unauthorized use;

Count I (Quantum Meruit), Count II (Unjust Enrichment), and

Count III (Promissory Estoppel) do not state any contract-related

claim because (a) Plaintiff has not alleged any benefits or services

conferred on Defendants for which he was not paid; (b) equity

does not require any payment be made to Plaintiff; (c) Plaintiff has

not alleged that Pink promised him anything; and (c) Plaintiff has

not pled any enforceable promise.

Count IV (Violation of the Georgia Fair Business Practices Act)

does not state a claim because (a) the statute does not allow non-

consumers to challenge the conduct of competitors; and (b)

Plaintiff cannot plausibly allege he relied on any misrepresentation



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pled that his alleged wig designs are distinctive and, accordingly,

they are not eligible for trade dress protection; and

Count VII (Litigation Expenses) does not state a claim because no

independent claim exists under Ga. Code Ann. 13-6-11.

If the Amended Complaint is not dismissed in its entirety, Plaintiff should

provide Defendants a more definite statement under Rule 12(e) to identify the

conduct pertaining to each defendant.

For each of the foregoing reasons, Defendants respectfully request that the

Court GRANT their Motion to Dismiss.

This 22ndday of July, 2014.

Respectfully submitted,

JONATHAN D. DAVIS, P.C.

By: /s/ Jonathan D. DavisJonathan D. Davis, Esq.

(admittedpro hac vice)10 Rockefeller Plaza, Suite 1015

New York, New York 10020



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STOKES WAGNER HUNTMARETZ & TERRELL, ALC

By: /s/ Hayden PaceHayden Pace, Esq.Georgia Bar No. 558595

3593 Hemphill StreetAtlanta, Georgia 30337404.766.0076 (tel)404.521.4313 (fax)[email protected]

Attorneys and Local Counsel for

Defendants Onika Maraj and PinkPersonality, LLC



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LOCAL RULE 7.1 CERTIFICATION AND CERTIFICATE OF SERVICE

Counsel certifies that this document has been prepared with one of the font

and point selections approved by the Court in LR 5.1 or, if type written, that the

brief does not contain more than 10 characters per inch of type. This document

was prepared in Times New Roman 14 point font.

/s/ Hayden Pace

Hayden Pace, Esq.Georgia Bar No. 558595

STOKES WAGNER HUNTMARETZ & TERRELL, ALC3593 Hemphill StreetAtlanta, GA 30337404.766.0076 (tel)404.521.4313 (fax)



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CERTIFICATE OF SERVICE

I hereby certify that on this day I electronically filed the foregoing

Defendants Onika Marajs And Pink Personality, LLCs Motion To Dismiss The

Amended Complaint Under Fed. R. Civ. P. 12(b)(6), Or For A More Definite

Statement Under Fed. R. Civ. P 12(e), If Any Claim Survives This Motion ToDismiss, together with the Declaration of Jonathan D. Davis, Esq. and supporting

memorandum of law with the Clerk of the Court using the CM/ECF system which

will automatically send e-mail notification of such filing to the following counsel

of record:

Andrae P. Reneau, Esq.

Christopher M. Chestnut, Esq.

/s/ Hayden Pace

Hayden Pace, Esq.

Georgia Bar No. 558595

STOKES WAGNER HUNT Local counsel for DefendantsMARETZ & TERRELL, ALC3593 Hemphill StreetAtlanta, GA 30337404.766.0076 (tel)

404.521.4313 (fax)



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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

TERRENCE DAVIDSON,

Plaintiff,

vs.


Defendants.


MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS

MOTION TO DISMISS THE AMENDED COMPLAINT UNDER

RULE 12(b)(6), OR FOR A MORE DEFINITE STATEMENT UNDERRULE 12(e), IF ANY CLAIM SURVIVES THIS MOTION TO DISMISS

JONATHAN D. DAVIS, P.C.10 Rockefeller Plaza, Suite 1015

New York, New York 10020(212) 687-5464

and

Case 1:14-cv-00507-RLV Document 19-1 Filed 07/22/14 Page 1 of 27


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Defendants Onika Maraj and Pink Personality, LLC (Pink and with Ms.

Maraj, Defendants) move to dismiss the Amended Complaint1 under Fed. R.

Civ. P. 12(b)(6), or to obtain a more definite statement under Fed. R. Civ. P. 12(e)

for any claim that survives the dismissal motion.2

PRELIMINARY STATEMENT

Plaintiff Terrence Davidson is a hairstylist and claimed wig designer who

is upset because he lost his most famous client, Onika Maraj p/k/a Nicki Minaj, a

well-known musical artist. Plaintiff filed this lawsuit to insert himself into Ms.

Marajs business affairs and to force Defendants into a business venture with him.

This case is not about Ms. Marajs indisputable right to wear the wigs

Plaintiff claims he designed for her to wear. And Mr. Davidson does not claim

he was not paid for making those wigs for Ms. Maraj or that she must return them.

1 Plaintiff filed his initial complaint on February 21, 2014 (the OriginalComplaint), which Defendants moved to dismiss. Doc. No. 4. Rather thanoppose Defendants motion to dismiss the Original Complaint, Plaintiff filed the



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Instead he complains that Defendants misappropriated his wig designs and

used them without his permission.

Plaintiff alleges no enforceable contract between himself and Defendants

concerning any subject matter. He claims only that he and Ms. Maraj discussed

two potential collaborative ventures, one involving a wig line and the other a

reality TV show. Both collaborative ventures never went beyond discussions.

As of January 2013, Ms. Maraj stopped using Mr. Davidsons hairstyling

services. Now Plaintiff wants to stop Defendants from allegedly using the

commonplace hairstyles embodied in the wigs he allegedly designed and created

for Ms. Maraj. The wig designs cannot support any legal claim. They combine

essential and ordinary characteristics of any wig: one or more hair colors and a

hairstyle. Moreover, the only wigs Plaintiff challenges are for Halloween

costumes available at www.mypinkfriday.com, a site Plaintiff attributes to

Defendants. They are not serious wigs for a womans wardrobe.

Plaintiffs gripe with Ms. Maraj is that she allegedly deprived him of the

http://www.mypinkfriday.com/http://www.mypinkfriday.com/http://www.mypinkfriday.com/


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enforceable contract, cannot bar Defendants from pursuing business relationships

without him.

Each claim should be dismissed under Rule 12(b)(6). If not, the Court

should order Plaintiff to provide a more definite statement because there are no

facts about Pinks conduct and the Amended Complaint uses the impermissibly

vague term Defendants to unreasonably obscure the conduct allegedly at issue.

BACKGROUND

Plaintiff is a hairstylist who designed wigs that Ms. Maraj, on occasion,

wore at events and appearances. Am. Compl. at 6, 10-22, 45. He alleges that

years ago, he created several pink wigs for Ms. Maraj to wear at the MTV

Network VMA pre-show. Id.at 11-12. The wig Ms. Maraj allegedly chose to

wear for the show combined the color pink with a bun hairstyle. Plaintiff calls this

wig the Pink Upper Bun Wig. Id. at 12. Ms. Maraj allegedly wore another

Davidson wig months later to perform at a radio stations Christmas concert, id.at

13-14, followed by other wigs for other public appearances. Id.at 15-22. All



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By November 2011, Ms. Marajs alleged brand manager, Al Branch,

supposedly began discussing various business ventures with Mr. Davidson for

Marajs brand-specific wigs[.] Id. at 23 (emphasis added). Plaintiff allegedly

told Mr. Branch that Plaintiff had a television contract on the table for a show

looking for the next top celebrity hairstylist. Id. at 24. Mr. Branch allegedly told

Plaintiff to hold off on the reality television show, and Mr. Branch and Ms.

Maraj allegedly promised Plaintiff that Plaintiff and Ms. Maraj would appear on a

reality show together. Id. Plaintiff claims that based on those alleged promises,

he declined to take the opportunity he was allegedly offered. Id.at 76.

Later in November, Plaintiffs alleged broker (Aaliyah Taylor), his

manager (Joseph Barrett), and Mr. Branch purportedly participated in a

conference call to discuss joint business ventures between Mr. Davidson and

[Ms.] Maraj, specifically, the creation of a wig line from Mr. Davidsons

designs and a reality TV show featuring Mr. Davidson and [Ms.] Maraj. Id. at

26 (emphasis added). He alleges that the parties agreed that they would



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In November, a representative from a hair company purportedly emailed a

full business proposal for the proposedwig line to Plaintiffs manager and Mr.

Branch. Id. at 29 (emphasis added). After Plaintiffs manager allegedly

informed him of this proposed wig deal, Plaintiff purportedly told Ms. Maraj

about it and announced that Mr. Branch should be contacting her soon . Id.at

30. Plaintiff fails to attach to his pleading the alleged wig deal or allege

whether Mr. Branch ever contacted Ms. Maraj. Plaintiff claims that months

passed, but his requests regarding the wig and reality TV business ventures to

Ms. Maraj and her team, went unanswered. Id.at 35-36.

In 2013, after Ms. Maraj stopped using Plaintiff as her hairstylist, Plaintiff

claims he discovered that [Ms.] Maraj took a number of his popular wig designs,

without his consent, and used them to start her own wig line. Id.at 37-38. He

further claims that wig styles he designed are being sold on numerous retail

websites, as well as [Ms.] Marajs website[.] Id.at 39. The wigs available on

the www.mypinkfriday.com website are sold under the tab: Halloween



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misappropriated and used by [Ms.] Maraj to design bottle tops for her fragrance

line. Id.at 41. Ms. Maraj is not alleged to have appeared in a reality hair show.

THE RULE 12(b)(6) LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a complaint must

contain sufficient factual matter, accepted as true, to state a claim [for] relief that

is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotingBell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). [A] plaintiffs obligation to

provide the grounds of his entitle[ment] to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not

do. Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678.

Moreover, if general and conclusory allegations of a pleading contradict

documents in or appended to the pleading, including such materials as pictures or

photographs, then the documents themselves not the plaintiffs characterization

of them are controlling. SeeCrenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir.

2009). Furthermore, a complaint must demonstrate more than the mere


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it must allege enough fact[s] to raise a reasonable expectation that discovery will

reveal evidence [supporting the claim], Twombly, 550 U.S. at 556.

POINT I: THE AMENDED COMPLAINT SHOULD

BE DISMISSED BECAUSE THE WIGS ARE NOT NOVEL

Plaintiff claims Defendants should pay for their purported use of his wig

designs. But the wig designs Mr. Davidson claims to own are not protectable

and cannot be owned. If he had a property right in the omnipresent hairstyles at

issue, e.g., a bun, a pixie cut, or a curly bob, he would not just have a claim against

Defendants, but businesses that make or sell similar wigs. Plaintiffs claims fail

because he cannot pursue any claimfor the use of non-novel ideas.

A.

Plaintiffs Non-Novel Wig Designs

Require His State Law Claims To Be Dismissed

Non-novel ideas do not constitute protectable property interests under

Georgia law. Burgess v. Coca-Cola Co., 536 S.E.2d 764, 769 (Ga. Ct. App. 2000).

They are inadequate as consideration, and when one submits [such] an idea to

another, no promise to pay for its use may be implied, and no asserted agreement


Case 1:14 cv 00507 RLV Document 19 1 Filed 07/22/14 Page 9 of 27


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enrichment claims fail because non-novel ideas confer no benefit. Id.; see also

Morton B. Katz & Assocs., Ltd. v. Arnold, 333 S.E.2d 115, 117 (Ga. Ct. App.

1985). Similarly, a promissory estoppel claim cannot be based on the

unauthorized use of anothers non[-]novel idea because its use would not result

in an injustice, a necessary element in a promissory estoppel claim. Burgess, 536

S.E.2d at 769.

Moreover, [l]ack of novelty in an idea is fatal to anycause of action for its

unlawful use. Burgess, 536 S.E.2d at 769 (emphasis in original) (internal

quotations omitted). Public policy favors this bright line because business, trade

and the professions [must] be free from encumbrance with alleged property rights

in ideas or concepts unless such ideas or concepts are truly unique and original.

Morton B. Katz & Assocs., Ltd., 333 S.E.2d at 117 (emphasis added).

Under Georgia law, to be novel the concept must be peculiar and not

generally available or known in the trade. To beprotected, an idea must possess

genuine novelty and invention, which it cannot have if it merely is an adaptation of




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already known and in use is put to a new use. Morton B. Katz & Assocs., Ltd.,

333 S.E.2d at 117 (citation and internal quotations omitted).

Here, a commonsense application of the novelty standard to Plaintiffs wigs

or to the concept that one could assert a property interest in a hairstyle requires

the conclusion that Plaintiffs wigs are not novel. Applying one or more colors to

a hairstyle is not novel. Women and men around the world have applied color to

their hair for centuries. Applying any color to a wig or in combination with other

colors is not novel, even if it had never been done before, because, at best, it would

be an adaptation of existing knowledge[.] Burgess,536 S.E.2d at 768.

Walking around any city or neighborhood, or even ones office or

household, reveals people sporting different hairstyles. Hairstyles do not belong to

anyone and cannot be monopolized. Using them requires no permission or license.

Plaintiff has no greater right to control the use of his alleged hairstyles than could

The Beatles have prevented the worlds younger generation from adopting the one

they wore. As a matter of law, Plaintiff cannot own a hairstyle.




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Plaintiff cannot cause confusing or deceive because ideas in the public domain

may be used with impunity and thus do not require attribution. Murray v. Natl

Broad. Co., Inc., 844 F.2d 988, 995 (2d Cir. 1988); see also Wal-Mart Stores, Inc.

v. Samara Bros., Inc., 529 U.S. 205, 210 (2000) (no confusion without

distinctiveness); Point IV infra.

POINT II: NO QUASI-CONTRACTUAL CLAIMS ARE STATED

Instead of alleging any written or oral contract, the Amended Complaint

includes deficiently pled claims for quantum meruit(Count I), unjust enrichment

(Count II), and promissory estoppel (Count III) that must be dismissed.3

A. No Claim Is Stated For Quantum MeruitOr Unjust Enrichment

Plaintiff cannot maintain a quantum meruit or unjust enrichment claim

because he has not plausibly alleged that he provided valuable services to

Defendants or conferred any benefit on them for which he was not paid.

The essential elements of a claim for quantum meruit under Georgia law

are (1) the performance of valuable services; (2) accepted by the recipient or at




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the provider expected compensation at the time services were rendered. Stuart v.

Resurgens Risk Mgmt., Inc., No. 1:11-CV-04251-RWS, 2013 WL 2903571, at *7

(N.D. Ga. June 12, 2013) (internal quotations omitted).

[U]nder Georgia law, an unjust enrichment claim requires the plaintiff to

establish : (1) that the plaintiff conferred a benefit on the defendant and (2) that

equity requires the defendant to compensate the plaintiff for this benefit.

JCarpc, LLC v. Wilkins, 545 F. Supp. 2d 1330, 1340 (N.D. Ga. 2008) (internal

quotations omitted).

The quantum meruit and unjust enrichment claims against Pink must be

dismissed because Plaintiff does not allege that he provided anyservices to Pink or

conferred any benefit on Pink, or that Pink accepted any services from Plaintiff.

Plaintiff claims that he had a business relationship with Ms. Maraj, not with

Pink. Am. Compl. at 8. The wigs he allegedly created were presented to Ms.

Maraj, not to Pink. Id.at 10. Indeed, Plaintiff alleges that he created multiple

wigs for [Ms.] Maraj. Id.at 11, 13, 15, 17, 19, 21. Absent from the Amended




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to Pink.4 Having received nothing and accepted nothing from Plaintiff, there is no

basis for equity to require Pink to compensate Plaintiff for anything.

The quantum meruitand unjust enrichment claims are also deficiently pled

against Ms. Maraj because Plaintiff has not alleged any facts that her alleged

failure to compensate him for any purported commercial use of his wig designs is

unjust or inequitable. Mr. Davidson was Ms. Marajs hairstylist. He provided

hairstyling services for which he does not claim he is owed compensation. Instead,

he alleges that to the extent [he] received any compensation for his work, such

compensation was solely for his services to provide a personal hair style for a

specific celebrity appearanceby [Ms.] Maraj on a specific date. Am. Compl. at

60 (emphasis added).

Now, in hindsight, Plaintiff apparently wants to remedy what he believes to

be inadequate compensation for his hairstyling services. But equity has no role

here. If Ms. Maraj found another use for Plaintiffs non-novel wigs and wig

designs, equity does not require her to pay Plaintiff again for the services he was




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Holcomb, 483 S.E.2d 624, 626 (Ga. Ct. App. 1997) (stating, unjust enrichment

prevents party from avoid[ing] payment for the value received). Quasi-contracts

are not tools to extract more money from a defendant when the compensation a

plaintiff expected to receive, and did receive, is not enough.

5

See generally

Rodriguez v. Vision Correction Group, Inc., 580 S.E.2d 266 (Ga. Ct. App. 2003)

(affirming dismissal of quasi-contractual claims where employee was already

compensated).

B. No Claim Is Stated For Promissory Estoppel

To state a promissory estoppel claim a plaintiff must allege that: (1)

defendant made a promise to the plaintiff; (2) defendant should have expected that

plaintiff would rely on the promise; (3) the plaintiff relied on such promise to his

detriment; and (4) injustice can be avoided only by enforcing the promise. Ga.

Code Ann. 13-3-44(a).

Promissory estoppel requires some enforceable promise, that is a

manifestation of an intention to act in a specified way that justifies the

g



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Warren Engg, Inc., 804 F. Supp. 1540, 1544-45 (N.D. Ga. 1992); Mooney v.

Mooney, 538 S.E.2d 864, 868 (Ga. Ct. App. 2001); see also Joseph M. Still Burn

Centers, Inc. v. Amfed Natl Ins. Co., 702 F. Supp. 2d 1371, 1381 (S.D. Ga. 2010).

The promise must be something approaching a meeting of the minds or a mutual

understanding. If there is no promise to be enforced, then promissory estoppel

will not apply. Foley Co., 804 F. Supp. at 1545.

The promise must be communicated with sufficient particularity to enforce

the commitment, Mooney, 538 S.E.2d at 868, because promissory estoppel does

not apply to vague, indefinite promisesor to promises of uncertain duration. Ga.

Invs. Intl., Inc. v. Branch Banking & Trust Co., 700 S.E.2d 662, 664-65 (Ga. Ct.

App. 2010) (holding promise of future loan too vague when only duration term

alleged); see alsoMariner Healthcare, Inc. v. Foster, 634 S.E.2d 162, 168 (Ga. Ct.

App. 2006).

Important here, a promise to work something out in the future cannot

support a promissory estoppel claim, and neither can a promise to give ones



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indefinite period because parties did not define the meaning of continuing to

negotiate).

In addition, a plaintiffs reliance on the promise must be reasonable.

Discrete Wireless, Inc. v. Coleman Tech., Inc., 422 F. Appx 777, 782-83 (11th

Cir. 2011) (citing W.R. Grace & Co.-Conn. v. Taco Tico Acquisition Corp., 454

S.E.2d 789, 791 (Ga. Ct. App. 1995)). A partys reliance is unreasonable when,

for example, the promise is too vague to be enforced, or when the promise is too

substantial to not have been reduced to writing. Johnson v. Univ. Health Servs.,

Inc., 161 F.3d 1334, 1340-41 (11th Cir. 1998);Reindel v. Mobile Content Network

Co., LLC, 652 F. Supp. 2d 1278, 1291 (N.D. Ga. 2009) (holding reliance upon oral

promise to receive 5% of companys stock, an extraordinary transaction, was

unreasonable as a matter of law).

Here, Plaintiffs promissory estoppel claim must be dismissed against Pink

because he has not alleged Pink promised him anything. Instead, Plaintiff alleges

that [Ms.] Maraj [made] promises topursuea wig venture and a reality TV show



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made by Ms. Maraj). Because Pink made no promises to Plaintiff, Plaintiff could

not and did not rely on any promise from Pink; thus there is no promise to enforce.

But most importantly, Plaintiff has failed to plead any enforceable promise.

The alleged promises in the Amended Complaint are vague, indefinite, and lack

particularity. Ms. Marajs alleged promise to appear on a reality TV show with

Plaintiff is a prediction about the future that Ms. Maraj is incapable of controlling.

Whether to create a TV show involving Ms. Maraj and Plaintiff rests with

television and network executives, not with Ms. Maraj. And not only is that

promise for an uncertain duration, it contains no information about the show, its

length, location, format (competition/elimination or documentary), concept,

producer, sponsor, or even what network or channel it would appear on. Also

absent is any detail about creative control, the roles for Ms. Maraj and Plaintiff,

and the money necessary to obtain their involvement.6

The alleged promise to pursue a wig ventureis too vague and indefinite to

trigger promissory estoppel. The length of such pursuit is indefinite and there is no



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There are no details regarding the nature of the wig venture. Also absent from the

Amended Complaint is any detail regarding whether the wigs would be for

everyday wear or for use as a novelty item; whether the wigs would be cheap or

expensive; whether the wigs would be made of human hair or synthetic; how the

wigs would be marketed, if at all; how and where the wigs would be manufactured;

who would bear the risk of failure; and how any profits would be divided.

Because there is no certain promise in the Amended Complaint,

Plaintiff has alleged nothing upon which he could have reasonably relied.

POINT III: NO BUSINESS PRACTICES ACT CLAIM IS STATED

The Georgia Fair Business Practices Act (the FBPA) targets deceptive

practices that harm the general consuming public. It forbids a non-consumer from

challenging practices that could notpossibly mislead him, but maymislead others,

and it forbids claims from being brought in a representative capacity. Plaintiffs

FBPA claim must be dismissed because there is no allegation that he purchased a

wig from Defendants, and even if he had, he could not have been misled by any



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elements: a violation of the act, causation, and injury. Williams v. Jet One Jets,

Inc., 755 F. Supp. 2d 1281, 1289 (N.D. Ga. 2010) (citing Tiismann v. Linda Martin

Homes Corp., 637 S.E.2d 14, 17 (Ga. 2006)). To be deceptive, a business practice

must have the tendency or capacity to deceive. Wright v. Safari Club Intl, Inc.,

745 S.E.2d 730, 734 (Ga. Ct. App. 2013) (quoting Tiismann, 637 S.E.2d at 17).

The FBPA incorporates a reliance requirement within the causation element.

Lynas v. Williams, 454 S.E.2d 570, 574 (Ga. Ct. App. 1995). The absence of

justifiable reliance requires an FBPA claim to be dismissed. Id. Thus, [w]hen the

alleged FBPA violation is a misrepresentation, the consumer must show that he

exercised due diligence to ascertain the falsity of the statement [because]

[o]therwise [] the cause of the injury is the consumers lack of proper diligence,

rather than the alleged FBPA violation. Tiismann, 637 S.E.2d at 18; Agnew v.

Great Atl. & Pac. Tea Co., 502 S.E.2d 735, 736 (Ga. Ct. App. 1998).

Moreover, non-consumers do not have an FBPA claim when they allege an

injury from a publicly disseminated misrepresentation. Friedlander v. PDK Labs,



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practice relates to representations made by his competitor in the marketing of

competing products to the general consuming public, he lacks standing.

Friedlander, 465 S.E.2d at 671. And the claim may only be brought in a

plaintiffs capacity as an individual member of the consuming public[.] Id.

(quotingZeeman v. Black, 273 S.E.2d 910, 914 (Ga. Ct. App. 1980)).

Here, Plaintiff has failed to state a plausible claim under the FBPA. His

claim is no different than the one barred in Friedlander. Plaintiff is a non-

consumer complaining about business practices incapable of deceiving him, and

incapable of inducing his reliance. Plaintiff does not believe the purported

misstatements and omissions about his contribution to the designs on

www.mypinkfriday.comor elsewhere. He believes them to be false.7

POINT IV: PLAINTIFF HAS NOT STATED A TRADE DRESS CLAIM

7 Although Friedlanderconcerned a claim against a competitor, the case turnson the fact that plaintiff was a non-consumer that claimed an injury the FBPA wasnot meant to address. The Court made this point clear: Of course, if a business,



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The same standards govern Plaintiffs trade dress claims under the Lanham

Act and the Georgia Uniform Deceptive Trade Practices Act (GUDTPA). Both

claims fail because Plaintiff has not adequately pled and cannot plead that his

wig designs are distinctive and that consumers identify those designs with him.

A.Standards Governing Trade Dress

Claims Under The Lanham Act And GUDTPA

The term trade dress refers to the appearance of a product when that

appearance is used to identify the producer. Dippin Dots, Inc. v. Frosty Bites

Distribution, 369 F.3d 1197, 1202 (11th Cir. 2004). To bring a successful trade

dress infringement claim under the Lanham Act, a plaintiff must prove that (1) the

defendants product is confusingly similar to its product; (2) the similar features of

the two products are primarily non-functional; and (3) the plaintiffs product is

distinctive. Millers Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702

F.3d 1312, 1322 (11th Cir. 2012).8

8 The Lanham Act does not remedy failing or omitting to give a person credit.



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To adequately plead distinctiveness, the plaintiff must articulate the

specific elements which comprise its distinct dress. Heller Inc. v. Design Within

Reach, Inc., No. 09 Civ. 1909 (JGK), 2009 WL 2486054, at *6 (S.D.N.Y. Aug. 14,

2009) (citation and internal quotations omitted). A plaintiff must describe not just

which features are distinctive, but also how they are distinctive. Id.(citation and

internal quotations omitted). Merely laudatory descriptions that lack specificity

fail to indicate what unique combination of features makes the trade dress ...

likely to be perceived by consumers as bearing the stamp of their maker. Id.

(quotingLandscape Forms, 113 F.3d at 381-82); see also Shevy Custom Wigs, Inc.

v. Aggie Wigs, No. 06 CV 1657, 2006 WL 3335008, at *5 (E.D.N.Y. Nov. 17,

2006) (sweeping descriptions ... in fact denote categories of features, not the

features themselves). Attaching product images to a complaint is insufficient to

allege distinctiveness or the scope of the claimed trade dress. Natl Lighting Co. v.

Bridge Metal Indus., LLC, 601 F. Supp. 2d 556, 562-63 (S.D.N.Y. 2009).

Trade dress can be distinctive if it is inherently distinctive or if it acquires



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consumers know most unusual [] designs [are] intended not to identify the

source, but to render the product itself more useful or more appealing); Coach

House Restaurant, Inc. v. Coach & Six Restaurants, Inc., 934 F.2d 1551, 1560

(11th Cir.1991) (secondary meaning factors).

When a trade dress infringement claim is brought under GUDTPA, Georgia

courts analyze the claim using the Lanham Act standard. Optimum Techs., Inc. v.

Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1239 (11th Cir. 2007); Brown

Bark II, L.P. v. Dixie Mills, LLC, 732 F. Supp. 2d 1353, 1359-60 (N.D. Ga. 2010).

B.Plaintiff Has Not Pled A Trade Dress Claim

Though Plaintiff describes the various wigs he allegedly created and styled

for Ms. Maraj, he has not pled a trade dress claim. The allegation that Plaintiffs

wigs are inherently distinctive, Am. Compl. at 101, is a conclusory and a

laudatory statement insufficient to state a trade dress claim. In addition, none of

the descriptions or photos in the Amended Complaint demonstrate or explain how

the wigs are intrinsically linked to Plaintiff in the minds of consumers. SeeNatl



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features as Plaintiffs designs. See Heller Inc., 2009 WL 2486054, at *6; Shevy

Custom Wigs, Inc., 2006 WL 3335008, at *5. Again, Plaintiffs legal conclusions

are inadequate. Am. Compl. at 109.

As the images reveal in the Amended Complaint, the wig designs allegedly

worn by Ms. Maraj, see Am. Compl. at 12, 14, 16, 18, 22, do not by their

intrinsic nature serve to identify a particular source of a product. See Millers

Ale House, 702 F.3d at 1322 (citation and internal quotation omitted). Merely

stating that the wig designs are unique, unusual and unexpected, Am. Compl. at

101, or that the designs are capable of creating a commercial impression, id.at

115, does not make it so.9

Wigs are functional fashion items that may be copied. Plaintiffs Lanham

Act and GUDTPA claims must be dismissed.

POINT V: NO LITIGATION EXPENSES CLAIM EXISTS

The Amended Complaint purports to plead a claim for Litigation

Expenses under Ga. Code Ann. 13-6-11. Litigation expenses are recoverable



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under 13-6-11 only when the plaintiff has an underlying claim. Bouboulis v.

Scottsdale Ins. Co., 860 F. Supp. 2d 1364, 1381 (N.D. Ga. 2012) (citing Gilmour v.

Am. Natl Red Cross,385 F.3d 1318, 1324 (11th Cir. 2004)).

Because Plaintiff has not pled any viable claim against Defendants, he

cannot recover any of his litigation expenses under 13-6-11. Even if Plaintiff

managed to allege a claim, he has not stated a claim for litigation expenses under

13-6-11 because he alleges only legal conclusions. Am. Comp. at 148. This

claim should be dismissed.

POINT VI: IF ANY CLAIM SURVIVES THIS MOTION, THEN

A MORE DEFINITE STATEMENT IS NECESSARY

The Amended Complaint alleges no facts supporting Plaintiffs decision to

name Pink as a defendant. After identifying Pink as a party, Plaintiff never

mentions Pink again. And throughout the pleading, Plaintiff cryptically refers to

Defendants or worse yet to Defendant with no elaboration.

When a complaint against multiple defendants alleges claims that are not



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26, 2007); Fed. R. Civ. P. 12(e). Defendants must speculate about which

allegations are intended to address their respective conduct. If the pleading is not

dismissed, Plaintiff should be ordered to identify the conduct pertaining to each

defendant.

CONCLUSION

For all the foregoing reasons, Defendants respectfully request that the Court

dismiss the Amended Complaint in its entirety.

Dated: This 22ndday of July, 2014

Respectfully submitted,

JONATHAN D. DAVIS, P.C.

By: /s/ Jonathan D. DavisJonathan D. Davis, Esq.(admittedpro hac vice)10 Rockefeller Plaza, Suite 1015

New York, New York 10020(212) 687-5464STOKES WAGNER HUNT

MARETZ & TERRELL, ALC

B / / H d P



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LOCAL RULE 7.1(D) CERTIFICATION

By signature below, counsel certifies that the foregoing pleading was

prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1C.

CERTIFICATE OF SERVICE

I hereby certify that on this day I electronically filed the foregoing

Memorandum of Law in Support of Defendants Motion to Dismiss the Amended

Complaint under Rule 12(b)(6), or for a more definite statement Under Rule 12(e)

if any Claim Survives this Motion to Dismisswith the Clerk of the Court using the

CM/ECF system which will automatically send e-mail notification of such filing to

the following counsel of record:

Andrae P. Reneau, Esq.

Christopher M. Chestnut, Esq.

/s/ Hayden PaceHayden PaceGeorgia Bar No. 558595



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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

TERRENCE DAVIDSON,

Plaintiff,

vs.


Defendants.


DECLARATION OF JONATHAN D. DAVIS, ESQ.

Pursuant to 28 U.S.C. 1746, Jonathan D. Davis, hereby declares as

follows:

1. I am over eighteen years of age and competent to make this Declaration.

I have personal knowledge of the facts stated herein.

2.

I am the sole shareholder of Jonathan D. Davis, P.C., attorneys for

D f d t O ik M j d Pi k P lit LLC i th b ti d ti



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4.

Attached as Exhibit A is a copy of the Amended Complaint, filed on June

5, 2014 (ECF No. 14).

5. Attached as Exhibit B is a copy of a screenshot of the Halloween

Costumes page of the www.mypinkfriday.com online store, available at

http://nickiminaj.shop.bravadousa.com/Dept.aspx?cp=56249_58072 (last accessed

on July 21, 2014).

I declare under penalty of perjury that the foregoing is true and correct.

Executed in New York, New York, on this 22ndday of July 2014.

s/ Jonathan D. DavisJONATHAN D. DAVIS, ESQ.

http://www.mypinkfriday.com/http://www.mypinkfriday.com/http://nickiminaj.shop.bravadousa.com/Dept.aspx?cp=56249_58072http://nickiminaj.shop.bravadousa.com/Dept.aspx?cp=56249_58072http://nickiminaj.shop.bravadousa.com/Dept.aspx?cp=56249_58072http://www.mypinkfriday.com/


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EXHIBIT A

Case 1:14-cv-00507-RLV Document 14 Filed 06/05/14 Page 1 of 53Case 1:14-cv-00507-RLV Document 19-3 Filed 07/22/14 Page 2 of 54


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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

TERRENCE DAVIDSON,

Plaintiff,

v.


Defendants.

)))

))))))

))

Civil Action

File No: 1:14-cv-00507-RLV

DEMAND FOR JURY TRIAL

FIRST AMENDED COMPLAINT

COMES NOW Plaintiff, TERRENCE DAVIDSON, by and through his

undersigned counsel, and hereby files this First Amended Complaint against the

Defendants, ONIKA MARAJ and PINK PERSONALITY, LLC, and alleges as

follows:

PARTIES, JURISDICTION & VENUE

1.



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2.

Upon information and belief, Defendant Onika Maraj (Maraj) is a resident

of the State of California. At all times material hereto, Defendant Maraj, who is

known by her stage name Nicki Minaj, transacted and continues to transact

business in Georgia and specifically in this judicial district. Defendant Maraj is

subject to personal jurisdiction of this Court under Georgias Long Arm Statute

(O.C.G.A. 9-10-91).

3.

Upon information and belief, Defendant Pink Personality, LLC (Pink

Personality) is a Delaware limited liability company with its principal place of

business in Los Angeles, California. At all times material hereto, Defendant Pink

Personality transacted and continues to transact business in Georgia and

specifically in this judicial district. Defendant Pink Personality is subject to

personal jurisdiction of this Court under Georgias Long Arm Statute (O.C.G.A.

9-10-91).



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5.

This Court has subject matter jurisdiction over this matter pursuant to 28

U.S.C. 1332, as the parties are completely diverse in citizenship and the amount

in controversy exceeds $75,000.

FACTS

I. The Beginning of Mr. Davidsons Business Relationship with Maraj.

6.

In or around January 2010, Mr. Davidson entered into a business

relationship with Maraj to serve as her hair stylist. Specifically, over the course of

the next few years, Mr. Davidson designed a number of wigs, presented them to

Maraj, and Maraj would then choose her preferred wig design for a particular

event. Maraj was to use the wigs for her personal use only.

7.

Prior to working with Maraj, Mr. Davidson worked with numerous

renowned entertainers that had global brands including Patti Labelle and Jennifer



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8.

In the years following the commencement Mr. Davidsons business

relationship with Maraj, his wig designs aided greatly in developing the

appearance that Nicki Minaj is now widely known for. Indeed, Nicki Minaj is

arguably known just as well for her use of Davidsons wigs as she is her music.

9.

The wig designs that Mr. Davidson presented to Maraj, were fresh, unique

and highly distinguishable.

II. Specific Wigs Created by Mr. Davidson That Were Worn by Miraj

at Certain High Profile Events.

10.

As set forth above, Mr. Davidson created countless fresh, unique, innovative

and fashion forward wigs from which Maraj could choose a style depending on the

event.

11.



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12.

Of these pink wigs designed by Mr. Davidson, Maraj chose a pink wig with

an upper bun (the Pink Upper Bun Wig):

(Available at http://celebsalon.sheknows.com/long-hairstyles/nicki-minajs-neon-pink-hairstyle-at-the-vmas/)

13.

In or around December 2010, Mr. Davidson created several wigs for Maraj

to wear during a performance for the New York radio station, Hot 97s Christmas

http://cdn.blogs.sheknows.com/celebsalon.sheknows.com/2010/09/nicki-minaj-hair.jpg


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14.

Of these wigs designed by Mr. Davidson, Maraj chose a wig with patterns

and colors of a fox fur (the Fox Fur Wig):

(Available at http://urbanislandz.com/2010/12/28/nicki-minaj-rocks-the-mic-in-leopard-print-on-christmas-day-photo/).

15.

In or around January 2011, Mr. Davidson created several new pink wigs for

Maraj to wear for press appearances in London.



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(Available at http://foxync.com/1919541/fab-or-fug-nicki-minajs-cotton-candy-hi-

top-wig-photos)

17.

In or around April 2011, Mr. Davidson created several wigs for Maraj to

wear for her music video for the song Super Bass.

18.

Of these wigs designed by Mr. Davidson, Maraj chose a split two-tone wig

(the Super Bass Wig):

http://ronefoxync.files.wordpress.com/2011/01/nicki-minaj-wig.jpg


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(Available at http://nickiminajcostume.blogspot.com/2013/01/get-nicki-minajs-most-sought-after-wigs.html)

19.

In or around September 2011, Mr. Davidson created several wigs for Maraj

to wear during The Mercedes Benz Fashion Week in New York City.

20.

For this event, Maraj chose the half blonde half pink wig designed by Mr.

Davidson (the Half Blonde-Half Pink Wig):



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(Available at http://www.peoplestylewatch.com/people/stylewatch/package/gallery/0,,20222041_20527304_21052338,00.html)

21.

In or around November 2011, Mr. Davidson created several pink wigs for

Maraj to wear during a performance for a Victorias Secret special aired on CBS.

22.

Maraj chose the pink curls wig (the VS Wig) designed by Mr. Davidson

for her performance:



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(Available at http://urbanislandz.com/2011/11/30/nicki-minaj-performs-live-at-victorias-secret-fashion-show-video/nicki-minaj-victorias-secret-2/).

III. Various Business Opportunities Arise for Mr. Davidson as a Result

of his Fresh and Unique Wig Designs.

23.

As Nicki Minaj and her associated wig hair styles became more popular,

by November 2011, Al Branch, the brand manager for Maraj, began discussing

various business ventures with Mr. Davidson for Marajs brand-specific wigs that



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24.

In or around November 2011, Mr. Davidson informed Al Branch that he had

a television contract on the table for a reality television show searching for the next

top celebrity hairstylist.

25.

Nevertheless, Al Branch, as an agent of Maraj, told Mr. Davidson to hold

off on the reality television. Al Branch and Maraj promised that Mr. Davidson

and Maraj would appear on a reality show together.

26.

On or around November 9, 2011, there was a conference call, which

included Al Branch, Aaliyah Taylor (Mr. Davidsons broker), and Joseph Barrett

(Davidsons manager), to discuss joint business ventures between Mr. Davidson

and Maraj, and specifically, the creation of a wig line from Mr. Davidsons designs

and a reality TV show featuring Mr. Davidson and Maraj. During this call, the

parties agreed that they would continue to pursue the joint wig and reality TV



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27.

Thus, on or around November 10, 2011, Mr. Davidson met with certain

television executives to discuss the hair reality television show involving Mr.

Davidson and Maraj.

28.

Following the meeting, the television executives requested certain footage

mentioned during their meeting and Mr. Davidson subsequently sent the footage

to them.

29.

Additionally, in regards to the wig venture, on or around November 21,

2011, a representative from a hair company emailed Joseph Barrett and Al Branch

a full business proposal for the proposed wig line, which included full profit and

loss and a budget overview for the joint wig venture between Davidson and Maraj.

30.

On or about November 21, 2011, Barrett informed Mr. Davidson of the



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IV.

Maraj and her Agents Shun Mr. Davidson and Take Active StepsToward Hurting his Career.

31.

By the end of 2011, many promising business ventures were on the table for

Mr. Davidson and Maraj to pursue together. Nevertheless, beginning in 2012,

Maraj and her agents became mum about the business ventures and took active

steps to isolate Mr. Davidson and preclude him from the notoriety he deserved for

his wig designs.

32.

For example, in January 2012, Joseph Barretts office emailed The New

York Times Newspaper after reading an article in the newspaper written about

Marajs wigs.

33.

To Mr. Barrett and Mr. Davidsons surprise, on or about January 21, 2012,

the writer of the article informed Mr. Barretts office that the newspaper had



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34.

Mr. Davidson was not informed about this interview, however, and thus,

neither he nor his representatives declined the interview.

35.

Many months passed and neither Maraj nor her team responded to Mr.

Davidsons requests regarding the wig and reality TV business ventures.

36.

Indeed, in or around September of 2012, Al Branch emailed Mr. Davidson

asking for his hair care expertise about a possible hair care business deal. Mr.

Davidson asked Mr. Branch about their previous wig deal proposal, but again, did

not receive a response.

V. Marajs Unlawful Use of Mr. Davidsons Wig Designs is Discovered.

37.

In January 2013, Mr. Davidson ceased working as Marajs hair stylist.

38.



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39.

Indeed, the following wig styles designed by Mr. Davidson are now being

sold on numerous retail websites, as well as Marajs website,

www.mypinkfriday.com:

The Pink Upper Bun Wig

(Available at http://www.target.com/p/nicki-minaj-pink-bun-wig/-/A-14715501?ref=tgt_adv_XSG10001&AFID=Google_PLA_df&LNM=%7C14715501&CPNG=Seasonal&kpid=14715501&LID=PA&ci_src=17588969&ci

_sku=14715501&gclid=CN68-fGd2bwCFQ1o7AodZBgAe)

http://www.target.com/OpenZoomLayer?template=scene7-image&image=Target/14715501_is&omniZoomPartNumber=14715501&swCellSpacing=10,10&swHighlightThickness=1&swBorderThickness=0&itemTitle=Nicki+Minaj+Pink+Bun+Wig&omniImageCount=1


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The Fox Fur Wig

(Available at http://www.halloweencostumes.com/nicki-minaj-leopard-look-wig.html)

The Pink High Top Wig

http://nickiminaj.shop.bravadousa.com/Product.aspx?pc=BGAMNM19


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The Super Bass Wig

(Available at http://www.spirithalloween.com/product/rap-star-wig/)



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The VS Wig

(Available at http://nickiminaj.shop.bravadousa.com/Product.aspx?cp=56249_58072&pc=BGAMNM16).

40.

Thus, without Mr. Davidsons knowledge and consent, Maraj surreptitiously

cut Mr. Davidson out of their wig venture and misappropriated his wig designs to

pursue the wig venture on their own.

41.

http://www.spirithalloween.com/images/spirit/products/interactivezoom/processed/07171200.interactive.a.jpg


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42.

Indeed, the Davidson designed wig bottle tops are the focal point of Marajs

fragrance line:

(available at http://style.mtv.com/2013/07/29/nicki-minaj-minajesty/).

43.

Thus, without Mr. Davidsons knowledge and consent, Maraj surreptitiously

used Mr. Davidsons wigs and wig designs to further her fragrance venture.



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COUNT I

QUANTUM MERUIT

(Breach of Implied Contract)

44.

Plaintiff realleges the allegations of Paragraphs 1 through 43 as if fully set

forth herein.

45.

Defendants understood and agreed that Maraj could only use Plaintiffs wig

designs for Marajs personal use and attire for her appearances at various

entertainment and publicity events, consistent with Marajs use of Plaintiffs wigs

since 2010.

46.

To the extent Mr. Davidsons wigs and wig designs were used by

Defendants other than for Marajs personal use for appearances, Mr. Davidson

expected to be compensated for such additional uses. Such expectation of



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operated since 2010, Defendants wrongfully misappropriated Plaintiffs wig

designs and wigs, and entered into contracts with third parties for the sole

commercial purpose of profit and self-dealing.

48.

More specifically, Defendants have sold Mr. Davidsons wigs on numerous

retail websites, in addition to Marajs website, www.mypinkfriday.com, without

the knowledge and consent of Mr. Davidson.

49.

Defendants also unilaterally misappropriated Mr. Davidsons wigs and wig

designs and used them to pursue a fragrance venture.

50.

Without the knowledge and consent of Mr. Davidson, Mr. Davidsons wig

designs are prominently featured on the bottles used for Marajs fragrance line.

51.

Defendants knew the popularity, demand for and commercial value of Mr.



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her commercial appeal than a pink wig designed by Davidson and subsequently

used as a centerpiece on one of Marajs fragrance bottles.

52.

Thus, fully aware of the commercial value of Mr. Davidsons wigs and wig

designs, following Marajs personal use of Mr. Davidsons wigs at specific

appearances, Defendants did not return the wigs, accepted them into their

permanent possession and subsequently used Mr. Davidsons wigs and wig designs

for the sole commercial purpose of profit and self-dealing.

53.

Mr. Davidsons prior discussions with Defendants and/or their agents about

various wig deals and other ventures in which he would receive compensation

made clear that Mr. Davidson expected to be compensated for any commercial use

of his wigs and wig designs. Thus, Defendants were aware of Mr. Davidsons

expectation of compensation from them for any commercial use by them of his

wigs and wig designs.



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55.

Nevertheless, Mr. Davidson has not received any compensation for

Defendants commercial use of his wigs and wig designs.

56.

Plaintiff is entitled to damages for the reasonable value of his services and/or

property rendered to Defendants, in an amount to be determined by the enlightened

conscience of a jury.

COUNT II

UNJUST ENRICHMENT

57.


forth herein.

58.

To the extent there is no enforceable contract between Plaintiff and

Defendants, Plaintiff asserts his claim against Defendants for unjust enrichment as



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innovative and fashion forward wigs solely for her celebrity appearances

throughout the world.

60.

Mr. Davidson and Defendants understood that the wigs designed by Mr.

Davidson and used by Maraj were solely for Marajs personal use during specific

celebrity appearances. Thus, to the extent Mr. Davidson received any

compensation from Defendants for his work, such compensation was solely for his

services to provide a personal hair style for a specific celebrity appearance by

Maraj on a specific date.

61.

Mr. Davidson neither agreed to nor authorized Defendants use of the wigs

designed by him outside of Marajs personal use of the wig during a specific

celebrity appearance. Mr. Davidson certainly did not authorize Defendants to

unilaterally use the wigs designed by him for Defendants commercial financial

advantage.



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in addition to Marajs website, www.mypinkfriday.com, without the knowledge

and consent of Mr. Davidson.

63.

Defendants also unilaterally misappropriated Mr. Davidsons wig designs

and used them to pursue a fragrance venture.

64.

Without the knowledge and consent of Mr. Davidson, Mr. Davidsons wig

designs are prominently featured on the bottles used for Marajs fragrance line.

65.

Defendants knew the demand for and commercial value of Mr. Davidsons

unique, innovative and fashion forward wigs. Indeed, Defendants were aware of

various hair companies demand for Mr. Davidsons wigs for a wig line.

Moreover, in regards to the wigs used for her fragrance line, Maraj stated in

numerous interviews that there is nothing more synonymous with her commercial

appeal than a pink wig designed by Davidson and subsequently used as a



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Defendants did not return the wigs, accepted them into their permanent possession

and subsequently used Mr. Davidsons wigs for the sole commercial purpose of

profit and self-dealing, to the exclusion of Mr. Davidson.

67.

Mr. Davidsons prior discussions with Defendants and/or their agents about

various wig deals and other ventures in which he would receive compensation

made clear that Mr. Davidson expected to be compensated for any commercial use

of his wigs and wig designs. In fact, the Defendants fully expected to compensate

Mr. Davidson for any and all commercial uses of his wigs and wig designs. Thus,

Defendants were aware of Mr. Davidsons expectation of compensation from them

for any commercial use by them of his wigs and wig designs.

68.

Nevertheless, Mr. Davidson has not received any compensation or profits for

Defendants commercial use of his wigs and wig designs, yet Defendants have

unfairly profited from same.



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70.

Plaintiff is entitled to damages for the benefit conferred upon Defendants as

a result of their use, duplication, marketing and sale of Mr. Davidsons wigs and

wig designs in the consumer marketplace, in an amount to be determined by the

enlightened conscience of a jury.

COUNT III

PROMISSORY ESTOPPEL

71.


forth herein.

72.

As the wig hair styles created by Terrence Davidson became more popular,

various television and wig deals were being presented to Mr. Davidson.

73.

Similarly, by November 2011, Al Branch, an agent for Maraj, began



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74.

In or around November 2011, Mr. Davidson informed Al Branch that he had

a television contract on the table for a reality television show searching for the next

top celebrity hairstylist.

75.

Al Branch, as an agent of Maraj, told Mr. Davidson to hold off on the

reality television. Al Branch and Maraj promised that Mr. Davidson and Maraj

would appear on a reality show together.

76.

Thus, reasonably relying on representations made by and/or on behalf of

Maraj, Mr. Davidson declined the opportunity to appear on a reality television

show individually so he and Maraj could appear on a reality television show

together.

77.

In furtherance of Marajs promise to appear on a TV show with Mr.



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78.

In addition to Marajs promise to appear on a reality TV show with Mr.

Davidson, in November 2011, Maraj also promised to pursue a wig venture with

Mr. Davidson.

79.

Although there was much demand for Mr. Davidsons wigs and wig designs,

reasonably relying on the promise made by Maraj to pursue a joint wig venture,

Mr. Davidson no longer pursued any wig deals on his own.

80.

In regards to the promised wig venture, on or around November 21, 2011, a

representative from a hair company emailed Joseph Barrett and Al Branch a full

business proposal for the proposed wig line, which included full profit and loss and

a budget overview for the joint wig venture between Davidson and Maraj.

81.

On or about November 21, 2011, Barrett informed Mr. Davidson of the



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82.

Despite Marajs promises to pursue a wig venture and a reality TV show

contract, upon which Mr. Davidson reasonably relied given his prior relationship

with Maraj since 2010, Defendants cut Mr. Davidson out of their wig venture and

misappropriated his wig designs to pursue the wig venture on their own.

83.

Additionally, Defendants cut Mr. Davidson out of a reality TV show deal

and Maraj took the opportunity for herself.

84.

Given Defendants conduct and Mr. Davidsons detrimental reliance upon the

same, injustice can only be avoided by enforcing the aforementioned promises

made by Defendants and/or on Defendants behalf.

85.

As a result of Defendants conduct described herein, Mr. Davidson is

entitled to recover from Defendants all damages that are equitable and necessary to



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COUNT IV

VIOLATION OF THE GEORGIA FAIR BUSINESS PRACTICES ACT

86.


forth herein.

87.

Defendants have engaged in unfair and deceptive practices by selling Mr.

Davidsons wigs and wig designs in the consumer marketplace at retailers, on retail

websites, and additionally on Marajs own website, www.mypinkfriday.com,

without the knowledge and consent of Davidson. The general consuming public

and unwitting third parties who enter into contracts with Defendants for the

purchase and/or use of Davidsons wigs and wig designs are essentially unaware of

the fraudulent misrepresentation that the wigs and wig designs belong to

Defendants.

88.



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89.

More specifically, Defendants are causing confusion or actual

misunderstanding as to the source, affiliation, connection and/or association of the

wigs and wig designs being marketed by Defendants and used in the marketing of

Defendants fragrance line. Indeed, Defendants are openly marketing wigs and

using wig designs created by Mr. Davidson as if they are sourced or created by,

and/or associated with Defendants, and Defendants alone, when in fact they are

not.

90.

Based on the general appearance of the wigs and wig designs shown on

various retail websites, including Maraj's own website, Plaintiff has reason to

believe that the consuming public, of which he is a part, will conclude that the wigs

and wig designs and/or representation of same are, in fact, a distinctive product

belonging to, and created by Maraj, rather than Mr. Davidson, the true inventor and

source of the wigs and wig designs.



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connection and affiliation of the wigs and wig designs lies with Defendants alone,

which is an unlawful and deceptive business practice under the GFBPA.

92.

Defendants' unlawful business practices cause confusion in the consumer

marketplace concerning the true source, affiliation, connection and origin of the

wigs and wig designs. Indeed, several retailers selling the wigs that were designed

by Davidson state that such product is an officially licensed Nicki Minaj product.

See, e.g., http://www.spirithalloween.com/product/nicki-minaj-pink-bun-adult-wig/

(Let your imagination take flight when you create or complete your costume with

this officially licensed adult's Nicki Minaj pink bun wig. [W]ear it with the famous

spacesuit costume or use it to create your own take on this famous and stylish

rapper's look.) (last visited June 4, 2014).

93.

Mr. Davidson was not and is not a commercial competitor of Defendants in

the wig and/or fragrance marketplace. Rather, the commercial sale and



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not required in this case as Defendants neither maintain a place of business within

Georgia nor keep any assets within Georgia. O.C.G.A. 10-1-399.

95.

As a proximate cause of Defendants GFPBA violations, Plaintiff has

suffered damages in an amount to be determined at trial and he is entitled to

recover his reasonable attorneys' fees and expenses of litigation.

96.

Defendants actions set forth above were an intentional violation of the

GFPBA therefore entitling Plaintiff to an award of three times his actual damages.

97.

Defendants actions set forth above were conducted willfully, maliciously,

fraudulently, and with wantonness, oppression, and an entire want of care which

would raise the presumption of indifference to the consequence and entitle Mr.

Davidson to punitive damages in an amount sufficient to punish and deter such

conduct in the future.



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forth herein.

99.

This count arises under Sec. 43 (a) of the Trademark Act of 1946, as

amended, 15 U.S.C. 1125 (a).

100.

After retaining possession of several wigs and wig designs created by Mr.

Davidson, namely, the Pink Upper Bun Wig, the Fox Fur Wig, the Pink High Top

Wig, the Super Bass Wig, and the VS Wig, Defendants surreptitiously and

intentionally replicated these wigs for commercial purposes and have marketed,

advertised and placed these knock offs for sale in the consumer marketplace with

various retailers and retail websites, including her own

website,www.mypinkfriday.com.

101.

Each of the foregoing wigs is inherently distinctive because they are unique,

unusual and unexpected. As will be detailed below, Mr. Davidson claims trade



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and wig designs for their sole purpose of commercial activity, self-dealing, and

self-profit, contrary to the implied agreement between the parties regarding the

limited personal use of the wigs and wig designs and contrary to Marajs promise

to pursue a joint venture with Mr. Davidson.

103.

Defendants have without permission, wilfully and with the intention of

benefitting from the reputation and good will of Mr. Davidson, imitated the

Plaintiffs trade dress in the wigs named in Paragraph 100, supra.

104.

Specifically, the Pink Upper-Bun Wig consists of a distinctive pink upper

bun symbol, which is artfully placed vertically on top of the lower portion of the

head. Mr. Davidson claims protected trade dress in the pink upper-bun.

105.

The symbol reflected in the Fox Fur Wig is another unique, unusual and

unexpected design, with the lower tresses symbolizing the color of a foxs fur.



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106.

The Pink High Top Wig is symbolized by a fluffy and lightweight pink

cotton candy design, cascading asymmetrically above the head in another unique,

unusual and unexpected design. The texture is soft, lightweight and evokes the

ephemeral nature and sweetness of cotton candy. Below the high top, the lower

portion of the wig caresses the face in a darker shade of pink, the combination of

which brings out a womans fun and flirty personality. Trade dress is claimed in

the two-tone unique upwardly gravity-free design of the wig, including texture and

color.

107.

The Super Bass Wig displays another unique and unusual design which is

far from commonplace in the consumer marketplace. The crown of the head splits

the colors into white blonde on one side and pink on the other side. Trade dress is

claimed in the white blonde and pink colors.

108.



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Raggedy Ann curl and unique curly texture, which covers the entire head.

109.

Each of the foregoing wigs and wig designs created by Mr. Davidson bear a

striking and unusual symbol, color, texture, and graphic design, as well as an

undefined evocative emotion experienced by both the wearer and the casual

observer. These symbols make it likely that prospective purchasers will perceive

the designation as an indication of source, namely, Mr. Davidson. Undoubtedly,

the wigs are inherently distinctive based on the five senses.

110.

The features of the trade dress claimed in each of the foregoing wigs and

wig designs are primarily non-functional.

111.

Defendants volitional and outward acts of placing knock off wigs in

commerce is a false and misleading representation of fact, a false and misleading

description of fact, which is likely to cause confusion and mistake between the



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dealing deceives as to the affiliation, connection or association of Minajs wigs

with Mr. Davidson and the origin, sponsorship, or approval of her wigs and

commercial activities and sale of her wigs created by Mr. Davidson. Defendants'

unlawful business practices cause confusion in the consumer marketplace

concerning the true source, affiliation, connection and origin of the wigs and wig

designs.

113.

Indeed, several retailers selling the wigs that were designed by Davidson

state that such product is an officially licensed Nicki Minaj product. See, e.g.,

http://www.spirithalloween.com/product/nicki-minaj-pink-bun-adult-wig/ (Let

your imagination take flight when you create or complete your costume with this

officially licensed adult's Nicki Minaj pink bun wig. [W]ear it with the famous



114.



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without proof that the symbols, colors, and designs of the wigs, individually or as

the sum of their parts, together with the emotions they evoke, will automatically be

perceived by customers as an indicator of origin a trademark.

115.

Mr. Davidsons wig designs are capable of creating a commercial

impression distinct from accompanying words or the name of the wig itself. The

claimed trade dress is purely aesthetic, evocative, imaginative, and emotional.

116.

Defendants have used in commerce the symbols depicted in each of

Davidson's wigs and wig designs mentioned herein by placing the same symbol

protectable as trade dress on each of the knock off wigs sold and transported in

commerce by Defendants on various retail websites, including Marajs own

website, www.mypinkfriday.com.

117.

Further, Defendants have used in commerce a false designation of origin,



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Davidson's wigs and wig designs mentioned herein as official Nikki Minaj licensed

products. See, e.g., http://www.spirithalloween.com/product/nicki-minaj-pink-

bun-adult-wig/.

118.

The conduct of the Defendants as alleged in the foregoing paragraphs

constitutes trade dress infringement in violation of Section 43 (a) of the Lanham

Act (15 U.S.C. 1125 (a)).

119.

In addition to resulting in lost sales and lost profits, Defendants acts have

irreparably harmed the reputation of Mr. Davidson.

120.

Plaintiff has been damaged by the acts of the Defendants in an amount as yet

unknown, but on information and belief, Defendants have caused and will continue

to cause damages in excess of $1,000,000.00.

121.



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corporations in active concert or participation and/or affiliation with them from

directly or indirectly infringing or contributing to the infringement of the trade

dress rights of Plaintiff in any manner. Plaintiff is also entitled to an award of

damages in the full amount Plaintiff has sustained as a consequence of Defendants

actions, together with any and all profits of Defendants which are attributable to or

arise out of or from such infringements or wrongful acts.

122.

Defendants actions set forth above were conducted willfully, maliciously,

fraudulently, and with wantonness, oppression, and an entire want of care which

would raise the presumption of indifference to the consequence. As a result of the

willful nature of Defendants actions, Plaintiff is entitled to have the damages that

are awarded be trebled.

COUNT VI

VIOLATION OF THE GEORGIA DECEPTIVE TRADE PRACTICES ACT

123.

D id l th Pi k U B Wi th F F Wi th Pi k Hi h T



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Davidson, namely, the Pink Upper Bun Wig, the Fox Fur Wig, the Pink High Top

Wig, the Super Bass Wig, and the VS Wig, Defendants surreptitiously and

intentionally replicated these wigs for commercial purposes and have marketed,

advertised and placed these knock offs for sale in the consumer marketplace with

various retailers and retail websites, including her own

website,www.mypinkfriday.com.

125.

Each of the foregoing wigs is inherently distinctive because they are unique,

unusual and unexpected. As will be detailed below, Mr. Davidson claims trade

dress protection in discrete elements in each of the wigs. Further, the intrinsic

nature of the wigs serves to identify a particular source, Mr. Davidson, the creator.

126.

Defendants surreptitiously and intentionally replicated Mr. Davidsons wigs

and wig designs for their sole purpose of commercial activity, self-dealing, and

self-profit, contrary to the implied agreement between the parties regarding the

127

http://www.mypinkfriday.com/http://www.mypinkfriday.com/http://www.mypinkfriday.com/http://www.mypinkfriday.com/


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127.

Defendants have without permission, wilfully and with the intention of

benefitting from the reputation and good will of Mr. Davidson, imitated the

Plaintiffs trade dress in the wigs named in Paragraph 124, supra.

128.

Specifically, the Pink Upper-Bun Wig consists of a distinctive pink upper

bun symbol, which is artfully placed vertically on top of the lower portion of the

head. Mr. Davidson claims protected trade dress in the pink upper-bun.

129.

The symbol reflected in the Fox Fur Wig is another unique, unusual and

unexpected design, with the lower tresses symbolizing the color of a foxs fur.

Specifically, trade dress is claimed in the lower tresses of the wig, which consists

of a burnt orange color graduating and cascading into a light auburn color at the

lower end of the hair.

130.

portion of the wig caresses the face in a darker shade of pink the combination of



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portion of the wig caresses the face in a darker shade of pink, the combination of

which brings out a womans fun and flirty personality. Trade dress is claimed in

the two-tone unique upwardly gravity-free design of the wig, including texture and

color.

131.

The Super Bass Wig displays another unique and unusual design which is

far from commonplace in the consumer marketplace. The crown of the head splits

the colors into white blonde on one side and pink on the other side. Trade dress is

claimed in the white blonde and pink colors.

132.

The symbol, graphic design and color reflected in the VS Wig connotes a

Raggedy Ann type curl in a cotton candy pink color. The hair caresses the face and

evokes fanciful and childlike images based on the fictional character and every

young girls playmate. Mr. Davidson claims trade dress protection in the pink

Raggedy Ann curl and unique curly texture, which covers the entire head.

observer These symbols make it likely that prospective purchasers will perceive



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observer. These symbols make it likely that prospective purchasers will perceive

the designation as an indication of source, namely, Mr. Davidson. Undoubtedly,

the wigs are inherently distinctive based on the five senses.

134.

The features of the trade dress claimed in each of the foregoing wigs and

wig designs are primarily non-functional.

135.

Defendants volitional and outward acts of placing knock off wigs in

commerce is a false and misleading representation of fact, a false and misleading

description of fact, which is likely to cause confusion and mistake between the

Defendants trade dress and Plaintiffs trade dress.

136.

Defendants commercial activities as to the sale, marketing and advertising

of knock off wigs for the sole purpose of commercial activity, self-profit and self-

dealing deceives as to the affiliation, connection or association of Minajs wigs

designs



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designs.

137.

Indeed, several retailers selling the wigs that were designed by Davidson

state that such product is an officially licensed Nicki Minaj product. See, e.g.,

http://www.spirithalloween.com/product/nicki-minaj-pink-bun-adult-wig/ (Let

your imagination take flight when you create or complete your costume with this

officially licensed adult's Nicki Minaj pink bun wig. [W]ear it with the famous



138.

Defendants have used in commerce the symbols depicted in each of

Davidson's wigs and wig designs mentioned herein by placing the same symbol

protectable as trade dress on each of the knock off wigs sold and transported in

commerce by Defendants on various retail websites, including Marajs own

website, www.mypinkfriday.com.

person with another person, or as to the origin, sponsorship or approval of his or

Case 1:14-cv-00507-RLV Document 14 Filed 06/05/14 Page 48 of 53C

Davidson v. Maraj - Motion to Dismiss II

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Transcript of Davidson v. Maraj - Motion to Dismiss II