Appeal Brief

USCA Case #18-7168 Document #1795989 Filed: 07/05/2019 Page 1 of 49
ORAL ARGUMENT NOT YET SCHEDULED
United States Court of Appeals

for the
District of Columbia Circuit
No. 18-7168
IMAPIZZA, LLC,
Plaintiff-Appellant,
–v–
AT PIZZA LIMITED; BHASKER DHIR; RUPERT LYLE,
Defendants-Appellees.
___________________________
ON APPEAL FROM THE U.S. DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
Andrew D. Skale
David Barmak
(Application for Admission Pending)
MINTZ LEVIN COHN FERRIS
GLOVSKY AND POPEO, PC
701 Pennsylvania Avenue, NW, Suite 900
3580 Carmel Mountain Road, Suite 300
Washington, DC 20004
San Diego, California 92130
(202) 434-7300
(858) 314-1500
dbarmak@mintz.com
adskale@mintz.com
Attorneys for Plaintiff-Appellant
(Page 1 of Total)
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and D.C.
Circuit Rules 12(f) and 26.1, Appellant IMAPizza, LLC hereby provides the
following corporate disclosure statement:
IMAPizza, LLC has no parent corporation, and no publicly held company
has 10% or greater ownership in IMAPizza, LLC.
IMAPizza, LLC is a limited liability company organized under the laws of
Delaware. Its principal place of business is located at 500 Penn Street, N.E.
Washington D.C. 20002 and its general purpose is to own and operate pizza
restaurants.
Date: July 5, 2019 /s/ David Barmak

David Barmak
Mintz Levin Cohn Ferris Glovsky and
Popeo P.C.
701 Pennsylvania Avenue NW #900
Washington, D.C. 20004
(202) 434-7300
dbarmak@mintz.com
(Page 2 of Total)
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
CERTIFICATE AS TO PARTIES, RULINGS, RELATED CASES .................... vii
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 2
STATUTES AND REGULATIONS ......................................................................... 3
STATEMENT OF THE CASE .................................................................................. 3
I. &pizza’s Business Model and Pending Expansion .................................... 3
II. Defendants’ Tortious Conduct as Alleged in the Complaint ..................... 4
A. Defendants’ Copycat Scheme .......................................................... 4
B. Defendants’ Execution of Their Scheme ......................................... 4
C. &pizza Discovers Defendants’ Scheme, after which

Defendants Become More Flagrant in their Copying ...................... 7
D. The Harm to &pizza and U.S. Commerce ....................................... 9
E. Procedural Posture ......................................................................... 10
SUMMARY OF ARGUMENT ............................................................................... 11
STANDARD OF REVIEW ..................................................................................... 13
ARGUMENT
I. The Court Erred in Dismissing Appellant’s Claims Without Leave

to Amend .................................................................................................. 14
II. The Court Erred in Dismissing the First Cause of Action for U.S.
Copyright Infringement By Concluding That No Act Plausibly
Constituted Infringement Within the United States ................................. 17
i
(Page 3 of Total)
A. &pizza Adequately Stated a Claim for Copyright Infringement

Pursuant to the “Complete-Act” Test for Extraterritoriality
Under the U.S. Copyright Act ........................................................ 20
B. &pizza Further Alleged Extraterritoriality Under the “Not

Entirely Abroad” (or “Part of an Act of Infringement”) Test ........ 23
III. The Court Erred in Dismissing the Third and Fourth Causes
of Action under the Lanham Act by Concluding the
Complaint Failed to Justify Extraterritorial Application
of the Lanham Act .................................................................................... 26
IV. The Court Erred in Dismissing the Fifth Cause of Action for Trespass
by Concluding it Failed Based on Consent and Scope Of Consent
and the Inapplicability of Fraud or Mistake ............................................. 31
V. The Court Erred in Partially Granting and Denying Appellant’s

Motion for Leave to File Surreply (Dkt. No. 36) ..................................... 35
VI. The Court Erred in Holding There Is No Supplemental Jurisdiction

Over The Second Cause of Action for UK Passing Off If the
Dismissal Of One Or More Claims Is Reversed ...................................... 37
CONCLUSION ........................................................................................................ 38
ii
(Page 4 of Total)
TABLE OF AUTHORITIES
PAGE(S)
Cases
Aleutian Pribilof Islands Ass’n, Inc. v. Kempthorne,

537 F. Supp. 2d 1 (D.D.C. 2008) ...................................................................35
Berlin v. Bank of Am., N.A.,

101 F. Supp. 3d 1 (D.D.C. 2015)............................................................ 35, 38
Browning v. Clinton,
292 F.3d 235 (D.C. Cir. 2002) .......................................................................13
Builders Mut. Ins. Co. v. Donald A. Gardner Architects, Inc.,

856 F. Supp. 2d 773 (D.S.C. 2012) ...............................................................26
Columbia Pictures v. Fung,

No. CV 06-5578 SVW (JCx), 2009 U.S. Dist. LEXIS 122661
(C.D. Cal. Dec. 21, 2009) ....................................................................... 22, 23
Counsel on American-Islamic Rels. Action Network v. Gaubatz,

793 F. Supp. 2d 311 (D.D.C. 2011)........................................................ 32, 33
Democracy Partners v. Project Veritas Action Fund,

285 F. Supp. 3d 109 (D.D.C. 2018)........................................................ 32, 34
EEOC v. St. Francis Xavier Parochial Sch.,

117 F.3d 621 (D.C. Cir. 1997) .......................................................................14
Elsevier Ltd. v. Chitika, Inc.,

826 F. Supp. 2d 398 (D. Mass. 2011) ..................................................... 19, 20
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. 340 (1991).......................................................................................17
Firestone v. Firestone,
76 F.3d 1205 (D.C. Cir. 1996) ................................................................ 14, 16
Flynn v. Veazey Constr. Corp.,

310 F. Supp. 2d 186 (D.D.C. 2004)...............................................................35
iii
(Page 5 of Total)
Foman v. Davis,
371 U.S. 178 (1962).......................................................................................14
Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC,

139 S. Ct. 881 (2019).......................................................................................6
Herbert v. National Academy of Sciences,

974 F.2d 196 (D.C. Cir. 1992) .......................................................................35
Herron v. Fannie Mae,

861 F.3d 160 (D.C. Cir. 2017) .......................................................................13
Hettinga v. United States,

677 F.3d 471 (D.C. Cir. 2012) .......................................................................13
Hurd v. District of Columbia,

864 F.3d 671 (D.C. Cir. 2017) .......................................................................13
Jefferies v. District of Columbia,

917 F. Supp. 2d 10 (D.D.C. 2013) .................................................................18
Kim v. United States,

632 F.3d 713 (D.C. Cir. 2011) .......................................................................13
Kroma Makeup EU, Ltd. v. Boldface Licensing + Branding, INC.,

No. 6:14-cv-1551-Orl-40GJK, 2015 U.S. Dist. LEXIS 49534
(M.D. Fla. Apr. 15, 2015) ..............................................................................29
Liberty Media Holdings, LLC v. Vinigay.com,

No. CV-11-280-PHX-LOA, 2011 U.S. Dist. LEXIS 153615
(D. Ariz. Dec. 27, 2011) ................................................................................18
Liberty Media Holdings, LLC v. Vinigay.com,

No. CV-11-280-PHX-LOA, 2011 U.S. Dist. LEXIS 153615
(D. Az. Dec. 21, 2001)...................................................................................20
Litecubes, LLC v. N. Light Prods., Inc.,

523 F.3d 1353 (Fed. Cir. 2008) .....................................................................24
MGM Resorts Int’l v. Unknown Registrant of www.imgmcasino.com,

No. 2:14-cv-1613-GMN-VCF, 2015 U.S. Dist. LEXIS 128397
(D. Nev. Jul. 8, 2015) ....................................................................................30
iv
(Page 6 of Total)
MGM Resorts v. Unknown Registrant,

2015 WL 5674374 (D. Nev. Jul. 8, 2015) .....................................................30
Parker v. Baltimore & Ohio R.R.,

652 F.2d 1012 (D.C. Cir. 1981) .............................................................. 16, 17
Rundquist v. Vapiano SE,

798 F. Supp. 2d 102 (D.D.C. Jul. 20, 2011) ..................................................20
Schuler v. United States,

617 F.2d 605 (D.C. Cir. 1979) .......................................................................13
Spanski Entes., Inc. v. Telewizja Polska, S.A.,

883 F.3d 904 (D.C. Cir. 2018) ................................................................ 24, 25
Stenograph L.L.C. v. Bossard Assocs.,

144 F.3d 96 (D.C. Cir. 1998) .........................................................................17
Synopsys, Inc. v. Ubiquiti Networks, Inc.,

No. 17-cv-00561-WHO, 2017 U.S. Dist. LEXIS 130070
(N.D. Cal. Aug. 15, 2017) ...................................................................... 18, 20
Tire Eng’g & Distribution Ltd. Liab. Co. v. Shandong Linglong

Rubber Co.,
682 F.3d 292 (4th Cir. 2012) .........................................................................20
Trader Joe’s Co. v. Hallatt,

835 F.3d 960 (9th Cir. 2016) ............................................................ 27, 29, 30
Warnaco Inc. v. VF Corp.,

844 F. Supp. 940 (S.D.N.Y. 1994) ................................................................29
Wells Fargo & Co. v. Wells Fargo Express Co.,

556 F.2d 406 (9th Cir. 1977) .................................................................. 27, 29
Statutes
15 U.S.C. 1114 ...........................................................................................................3
15 U.S.C. § 1121(a) ...................................................................................................1
15 U.S.C. 1125 ...........................................................................................................3
17 U.S.C. § 120(a) ............................................................................................ 26, 36
v
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17 U.S.C. 501 .............................................................................................................3
28 U.S.C. § 1291 ........................................................................................................1
28 U.S.C. § 1332(a) ...................................................................................................1
28 U.S.C. § 1338(a) ...................................................................................................1
28 U.S.C. § 1367(a) ...................................................................................................1
D.C. Code Ann. § 13-423(a)(4) ...............................................................................36
Rules
D.C. Circuit Rule 28(a)(5) .........................................................................................3
Fed. R. Civ. P. 4(k)(2)..............................................................................................36
Fed. R. Civ. P. 15(a).................................................................................................14
Federal Rule of Appellate Procedure 32 ..................................................................39
Federal Rule of Appellate Procedure 32(f) ..............................................................39
Rule 12(b)(6) ................................................................................................. 13, 27, 28
Other Authorities
Restatement (Second) of Torts § 892B(2) ...............................................................32
vi
(Page 8 of Total)
CERTIFICATE AS TO PARTIES, RULINGS, RELATED CASES
IMAPizza LLC hereby supplies the following information:
(A) Parties and Amici
The Appellant in this case is IMAPizza, LLC.
The Appellees in this case are At Pizza Limited; Bhasker Dhir; and
Rupert Lyle.
(B) Rulings Under Review
Appellant appeals all rulings subsidiary to and including entry of
judgment against it, including:
1. October 23, 2018 Order (ECF Docket No. 45);
2. October 3, 2018 Order (ECF Docket No. 41);
3. September 24, 2018 Memorandum Opinion and Order (ECF Docket No.
38);
4. July 26, 2018 Order (ECF Docket No. 36)
(C) Related Cases
There are no related cases.
vii
(Page 9 of Total)
JURISDICTIONAL STATEMENT
Appellant IMAPizza, LLC d/b/a &pizza (“&pizza”) asserted five causes of
action against Appellees in the U.S. District Court for the District of Columbia for
(1) U.S. copyright infringement, (2) passing off under U.K. common law, (3)
trademark infringement under the Lanham Act, (4) unfair competition under the
Lanham Act, and (5) trespass. The District Court had subject-matter (federal
question) jurisdiction to hear the claims pursuant to 15 U.S.C. § 1121(a), 28 U.S.C.
§§ 1332(a), 1338(a), and 1367(a) for &pizza’s Copyright Act and Lanham Act
claims and supplemental jurisdiction for its U.K. Common Law Passing Off and
state-law trespass claims arising from the same common nucleus of operative facts.
This Court has jurisdiction to hear this appeal under 28 U.S.C. § 1291
because the appeal arises from a final order dismissing all of &pizza’s claims
without leave to amend (October 23, 2018 Order re Dismissal – Dkt. No. 45 (“This
is a final, appealable order.”); October 3, 2018 Order – Dkt. No. 45; September 24,
2018 Memorandum Opinion and Order – Dkt. No. 38); and July 26, 2018 Order –
Dkt. No. 36). On June 24, 2019, the Court ordered the following briefing schedule
(see Doc. No. 1794273):
• Appellant’s Brief: July 5, 2019

• Appellee’s Brief: August 5, 2019
• Appellant’s Reply Brief: August 26, 2019
• Deferred Appendix: September 3, 2019
• Final Briefs: September 17, 2019
1
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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Whether the Court erred in dismissing &pizza’s Complaint without
leave to amend;
2. Whether the Court erred in dismissing the First Cause of Action for
U.S. Copyright Infringement by concluding that no act plausibly constituted
infringement within the United States;
3. Whether the Court erred in dismissing the Third and Fourth Causes of
Action under the Lanham Act by concluding it failed to justify extraterritorial
application of the Lanham Act;
4. Whether the Court erred in dismissing the Fifth Cause of Action for
Trespass by concluding it failed based on consent and scope of consent and the
inapplicability of fraud or mistake;
5. Whether the Court erred in partially granting and denying (Dkt. No.
36) Appellant’s Motion to Strike or Disregard, or, in the alternative, Motion for
Leave to File Surreply by allowing new material, argument, case law and issues
improperly raised in Reply to be considered without providing leave for a surreply
addressing these issues; and,
6. Whether there is supplemental jurisdiction over the Second Cause of
Action for UK Passing Off if the dismissal of one or more of the federal claims is
reversed.
2
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STATUTES AND REGULATIONS
Pursuant to D.C. Circuit Rule 28(a)(5), &pizza identifies the following
pertinent statutes upon which this appeal turns as to their validity or correct
interpretation or application: 15 U.S.C. 1114, 1125 et seq. (Lanham Act); 17
U.S.C. 501 et seq. (Copyright Act).
STATEMENT OF THE CASE
I. &pizza’s Business Model and Pending Expansion
The &pizza restaurant chain is extremely successful, having received
significant positive media coverage and recently dubbed “the next generation of
pizza” (among other accolades). Dkt. No. 1, Complaint ¶¶ 11, 23. &pizza owns
three U.S. trademark registrations for its &pizza marks in restaurant services. Id.
& Exs. 1-8. It has restaurants in Washington D.C. and throughout the East Coast.
Id. This anti-establishment establishment is renowned for its creative pies and
craft beverages, localized shop design, and its strength, unity and vibe. Id. ¶ 12.
As a fast-growing restaurant chain in the U.S., &pizza devoted substantial
resources towards and is actively pursuing expansion into the U.K., including
engaging in discussions with potential business partners there and applying for
trademarks. Complaint ¶¶ 12, 50. Even without an open restaurant in the U.K.,
&pizza has developed significant goodwill in the U.K. for its &pizza restaurants,
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including its “&pizza” mark and other features of its business identity. Id. ¶¶ 13-
16, 50, 65.
II. Defendants’ Tortious Conduct as Alleged in the Complaint
A. Defendants’ Copycat Scheme
While &pizza worked hard to expand, Defendants hatched a plan to open a
copy of &pizza in the U.K. Complaint ¶¶ 17, 23-24. Defendants apparently knew
that &pizza was in the process of expanding its &pizza restaurant chain to the
U.K., as they were careful to never approach &pizza to advise it of their plans. Id.
¶ 17. But to perfect this scheme, Defendants needed to come to the U.S. to steal
&pizza’s rights. Id. ¶ 24.1
B. Defendants’ Execution of Their Scheme
To fully copy &pizza, Defendants needed to observe &pizza’s restaurant
locations in-person. Complaint ¶ 24. Hence, Defendant Lyle toured a number of
&pizza locations in the District of Columbia. Id. ¶ 17. Realizing the uniqueness of
&pizza’s restaurant chain, Defendant Lyle had Defendant Dhir also take numerous
trips to visit the D.C. locations of &pizza. Id. Without authorization, they took
extensive pictures of &pizza’s D.C. locations, interior designs and operations,
accessed all parts of the restaurants to observe their design, and returned with this
1
Importantly, the individual defendants Lyle and Dhir were the primary actors and
directly engaged in the conduct discussed below. See, e.g., Complaint ¶¶ 8-9, 17-
18. Any actions of @pizza not taken by these two individuals were directed by
them as its owners, officers and managers. Id. ¶ 10.
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copyrighted information to the U.K. Id. ¶¶ 24-25, 74. They later returned to
Plaintiff’s D.C. &pizza premises with the general manager they had hired to run
their copycat store in the U.K., conducting secret, on-the-job training in order to
ensure the most accurate copying of &pizza’s brand, look and feel, and to study
what they themselves referred to as their “competitor.” Id. ¶ 74. The general
manager and others that Lyle and Dhir sent to train at &pizza’s restaurants were
undisclosed agents of the Defendants. Id. ¶84.
Defendants then proceeded to present to the marketplace their restaurant
plan, using copyrighted pictures of Plaintiff’s D.C. &pizza premises, passing off
their restaurant plan as their own, knowing they had used copyrighted images of
&pizza, stolen from &pizza. Complaint ¶¶ 26-29.
These entries onto &pizza’s D.C. premises were without authorization.
Complaint ¶¶ 81, 85. Defendants did not have Plaintiff’s permission or consent to:
(1) take unauthorized pictures, (2) steal &pizza’s intellectual property, (3) train
@pizza’s management in &pizza’s restaurant operations, (4) perfect a scheme of
unfair competition, and (5) take &pizza information to facilitate passing off their
@pizza establishments as &pizza in their marketing material. Id. ¶ 82.
5
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Defendants also downloaded pictures of &pizza’s restaurants and interior
design from a number of U.S. websites in their effort to replicate &pizza in
Defendant’s restaurant. The downloaded pictures included interiors of seven of
&pizza’s D.C. restaurants, including three pictures that were taken for &pizza by
its advertising agencies and owned by &pizza (in addition to its ownership of the
depicted interior designs). Complaint ¶¶ 28, 40. This “access to &pizza’s
copyrighted works [occurred] in the United States.” Id. ¶ 36. The downloading
and server locations were both alleged to have occurred “in the United States,”
including U.S. servers in New Jersey, Virginia, California and Arizona. Id. ¶ 39.
As further evidence of their scheme Defendants initially named their
company &pizza (Plaintiff’s name), but then switched to the very similar @pizza
(its current name). MTD Oppo. at 10, 11, 32 (citing Wagner Decl. Ex. 1 ¶ 3-4,
Dkt. No. 23-2).
&pizza has U.S. copyright registrations based on the copyright applications
for the photographic works. Complaint ¶ 35 (listing application numbers).2 The
2
After the District Court issued its Order, the U.S. Supreme Court determined the
issue of whether copyright registrations are required or if copyright applications
are sufficient before suing for copyright infringement. See Fourth Estate Pub.
Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 888 (2019) (requiring
copyright registrations). Here, the U.S. Copyright Office has issued &pizza’s
copyright registrations based on its pending U.S. Copyright applications (see U.S.
Copyright Registration Nos. VA 2-098-575, VA 2-098-587, VA 2-098-605, VA 2-
127-496, VA 2-127-495).
6
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elements comprising these works are original. Id. ¶ 35. In fact, &pizza was so
creative in its interior designs that it won Restaurant Development + Design’s 2016
“Outside the Box Design Award.” Id. ¶ 23.
C. &pizza Discovers Defendants’ Scheme, after which

Defendants Become More Flagrant in their Copying
When &pizza ultimately learned of Defendants’ plans and demanded that
@pizza cease its copycat efforts, Defendants refused. Indeed, they doubled down.
Complaint ¶¶ 30-31. They were told that Lyle and Dhir intended to take still more
trips to &pizza’s D.C. restaurants to observe its design, operation and marketing.
Id. ¶ 32.
Defendants then followed through on their copycat scheme. By their own
admission, they used the pictures downloaded in the U.S. from U.S. servers and
inserted those pictures into marketing material circulated to @pizza’s business
partners. Complaint ¶¶ 26, 27, 39; Dhir Decl. ¶¶ 5-6; Lyle Decl. ¶ 11. The
marketing materials passed off the critical design elements of the &pizza
restaurants as @pizza’s own, and were so blatant that – by Defendants’ own
admission – they included (1) &pizza’s “LOVE&pizza” and “You&pizza” to-go
boxes and (2) a picture of a woman with an “&” tattoo seen in an image hung
behind the counter. Complaint ¶¶ 26, 27, 29; Dhir Decl. ¶ 6.
Defendants proceeded to launch their first @pizza restaurant. Everything
about the restaurant was designed to maximize its position as an &pizza copycat,
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including: (1) the copycat buildout of the interior, (2) widespread copying of
&pizza’s other brand identifiers, and (3) selection of a foreign location likely to
best trade off of &pizza’s existing goodwill.
First, Defendants’ U.S. copying and meticulous study of &pizza paid off
when the information and pictures acquired from the U.S. were used to create a
clone of &pizza. The trespassing, extensive photographing of the store designs,
and sending of @pizza staff to D.C. for secret on-site training were some of the
“acts of unfair competition in the U.S. that enabled this cloning.” Id. ¶¶ 72, 74.
Defendants’ U.S. reconnaissance paid off with a built-out clone restaurant with
derivative architectural and interior designs substantially similar to the designs of
&pizza’s restaurants. Id. ¶ 42. Thus, Defendants successfully captured the look
and feel of &pizza’s U.S. designs. Id. ¶¶ 42-43.
Second, Defendants also stole the brand identity of &pizza. They used their
infringement of &pizza’s trademark and other brand-identity features to blatantly
misrepresent an affiliation or association between their @pizza restaurants and
&pizza. Complaint ¶ 53. For example, Defendants used the confusingly similar
“@pizza” mark, the pizza selections (right down to every last nuanced detail), the
advertised “core values,” the non-functional elongated oval shape of the pizzas, the
non-functional elongated rectangular pizza to-go box, and even the name coined
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for its staff. Id. ¶¶ 19-20, 53. As a result, Defendants created an unauthorized
U.K. extension of &pizza’s U.S.-based restaurant chain.
Third, the location itself was deliberately chosen to trade off &pizza’s
goodwill. Defendants opened their first @pizza restaurant in a country in which
&pizza (1) already had goodwill in its name and business identity; (2) high
population of U.S. students and tourists; and (3) was actively pursuing expansion.
Complaint ¶¶ 50-51, 65. Defendants selected the location most likely to attract
thought-leading consumers familiar with the goodwill of &pizza, ensuring that a
substantial base of their customers would be U.S. consumers already familiar with
&pizza and glad to find a nearby affiliate. Id.¶ 55.
D. The Harm to &pizza and U.S. Commerce
Defendants’ wrongful acts were calculated to and are causing substantial
harm to &pizza’s U.S.-based restaurant chain, including its business and goodwill.
Complaint ¶¶ 54, 58, 64. Defendants so meticulously copied the trademark and
model of &pizza as to show an explicit purpose to cause this harm or effect on a
U.S. business and U.S. commerce. Id. ¶ 66(e). Consumers familiar with &pizza’s
restaurant chain (in large measure thought leaders from the U.S. abroad) are likely
confused as to an association or sponsorship between &pizza and @pizza. Id. ¶¶
55, 65(b). In fact, some have actually been confused. Id. ¶ 22.
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And for those consumers currently unfamiliar with &pizza, when &pizza
does open its expansion restaurants in the U.K. it may be viewed by those
consumers as the junior or infringing user of @pizza’s name and identity, further
tarnishing and damaging &pizza’s goodwill and business. Id. ¶ 60.
As &pizza is located predominantly in the U.S., one of the largest effects of
the infringement is to a U.S. company in the U.S. Id. ¶ 66(d). This harm was fully
foreseeable and Defendants were forewarned months before they opened their first
location. Id. ¶¶ 66(f) & 57.
E. Procedural Posture
&pizza’s Complaint was filed on November 3, 2017. Dkt. No. 1. On
January 12, 2018, Defendants filed their Motion to Dismiss, which &pizza
opposed on January 26, 2018. Dkt. Nos. 18, 23. Defendants’ reply in support of
their motion to dismiss (Dkt. No. 26) contained new material, which &pizza asked
the District Court to strike or disregard, or to grant permission to file a sur-reply.
Dkt. No. 30. The District Court’s July 2018 order refused to grant &pizza the
opportunity to file a sur-reply to each new topic (&pizza was given the opportunity
to file a sur-reply on 3 of the 11 areas of new material in Defendants’ reply). Dkt.
No. 36. This error is &pizza’s fifth issue submitted for review. The District Court
granted Defendants’ Motion to Dismiss on September 24, 2018, ruling that &pizza
failed to state a claim on which relief can be granted and not granting &pizza leave
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to amend its Complaint. Dkt. No. 38 (“MTD Order”). The MTD Order provides
the basis for &pizza’s first through fourth issues submitted for review.
On October 3, 2018, the District Court issued an order declining to exercise
supplemental jurisdiction over &pizza’s U.K. passing off claim, which is the
subject of &pizza’s sixth and final appealable issue. Dkt. No. 41 at 4. &pizza’s
case was dismissed on October 23, 2018, without leave to amend. Dkt. No. 45.
The failure to grant leave to amend is the basis for the fifth issue submitted for
review.
SUMMARY OF ARGUMENT
The District Court abused its discretion by dismissing &pizza’s Complaint
without leave to amend and in the absence of any apparent or declared reason.
Leave to amend is routinely allowed particularly where, as here, there were no
prior amendments to the Complaint. Had leave been granted, &pizza could have
corrected its allegations within the confines of supporting legal authority.
&pizza’s pragmatic and policy-supported theories regarding the extraterritorial
scope of the Copyright Act and the Lanham Act to the surreptitious conduct of
foreign Defendants who trespassed onto U.S. property to steal &pizza’s intellectual
property rights may have been bolstered in certain areas where the District Court
itself invited amendment. Instead, the District Court precluded any such
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opportunity to amend with its order granting Defendants-Appellees’ motion to
dismiss.
Moreover, &pizza’s allegations stated a plausible claim for relief. Despite
the Court’s ruling that extraterritoriality considerations precluded &pizza’s
copyright infringement and Lanham Act claims, the Complaint alleged domestic
acts of infringement and harm to a U.S. business. Here, the infringing acts where
alleged to be committed on U.S. soil, alleged to involve a substantial impact on
U.S. economic actors, and alleged to cause harm in the U.S. Such wrongful
conduct must be permitted to be judged here in the U.S.
The District Court further erred in failing to grant &pizza the opportunity to
file a sur-reply to each new topic raised in Defendants-Appellees’ reply in support
of their motion to dismiss (&pizza was given the opportunity to file a sur-reply on
3 of the 11 areas of new material in Defendants-Appellees’ reply) causing
prejudice to &pizza upon the final ruling. Lastly, because &pizza’s causes of
action based on the original jurisdiction of the District Court were properly alleged,
declining to exercise supplemental jurisdiction over the U.K. passing off claim was
also error.
If the Court upholds this ruling, the policy implication is that any competitor
from a foreign jurisdiction will have leeway to steal U.S. intellectual property
rights of U.S. citizens on U.S. soil, take that property back to their home countries,
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and reproduce that intellectual property without any consequences. The piracy will
support a free-for-all regime, whereby U.S. citizens will be required to chase down
looting individuals and businesses across the globe despite the direct impact on
their U.S. businesses.
STANDARD OF REVIEW
This Court reviews de novo a district court decision granting a motion to
dismiss under Rule 12(b)(6). Kim v. United States, 632 F.3d 713, 715, (D.C. Cir.
2011). “A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff’s
complaint; it does not require a court to ‘assess the truth of what is asserted or
determine whether a plaintiff has any evidence to back up what is in the
complaint.’” Herron v. Fannie Mae, 861 F.3d 160, 173 (D.C. Cir. 2017) (quoting
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). “In evaluating a Rule
12(b)(6) motion, the Court must construe the complaint ‘in favor of the plaintiff,
who must be granted the benefit of all inferences that can be derived from the facts
alleged.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)).
In deciding a motion to dismiss under Rule 12(b)(6), the Court “may
consider only the facts alleged in the complaint, any documents either attached to
or incorporated in the complaint and matters of which [the court] may take judicial
notice.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017)
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(alteration in original) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997)).
ARGUMENT
I. The Court Erred in Dismissing Appellant’s Claims Without Leave to

Amend.
“Leave to amend a complaint under Rule 15(a) ‘shall be freely given when
justice so requires.’” Fed. R. Civ. P. 15(a); Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
Refusing leave to amend “[i]n the absence of any apparent or declared reason —
such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment, etc….is merely abuse of that discretion and inconsistent with the
spirit of the Federal Rules.” Foman, 371 U.S. at 182.
Here, the District Court erred in refusing to grant &pizza leave to amend—
without any justification as to why &pizza would not be able to cure deficiencies
in its Complaint—while at the same time suggesting in its order that amendment
was quite feasible. For example, the District Court apparently did not credit
allegations of Defendants downloads to a U.S. computer. MTD Order at 22, 23,
29. On leave to amend, &pizza could have readily plead in good faith further
details regarding the U.S. downloads of these images during Defendants’
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reconnaissance missions to the District of Columbia. MTD Order at 29 (“It is
possible, of course, that one of the Defendants may have downloaded the images
during one of the alleged trips to the United States.”).
Similarly, the District Court articulated its understanding of what constituted
“uploading” in the U.S., but found that &pizza “has not alleged” such uploading.
MTD Order at 26. &pizza was not given a chance to amend to fit within the
district court’s articulated standard. Additionally, the District Court noted that
making a similar work in another country means a defendant “might well be liable
under” that country’s copyright law, but it did not grant leave to plead copyright
infringement under U.K./Scottish law. MTD Order at 25.
The District Court made several further suggestions as to how &pizza could
amend its Complaint but then denied &pizza the opportunity to do so. See, e.g.,
MTD Order at 32 & 35 n.8 (“there is no allegation that Defendants have made any
purchases of supplies or sales of pizza in the United States, or even that their
products or advertisements have entered the United States through the stream of
commerce” or “otherwise sought out U.S. customers”); MTD Order at 32 & 33
(noting particular allegations that were not specific or “concrete” enough to get
above “the speculative level”); MTD Order at 33 (suggesting specific actual
“instance of confusion” should be plead instead of the typical Lanham Act’s
likelihood of confusion); MTD Order at 36 (trespass allegation lacks “facial
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plausibility” and needs “factual content to support it,” “for example, that
Defendants entered private areas of the restaurant, broke in after hours, or
remained after being asked to leave”); MTD Order at 37 (consent to enter property
“may be invalid when it is induced by a substantial mistake or fraud”); MTD Order
at 39 (“assuming” the nature of Defendants’ “misrepresent[ing] their intentions”
for purposes of trespass analysis); MTD Order at 41 (noting lack of allegation
about restrictions conveyed to customers, customary restrictions of access in
restaurant context, and revoking of consent).
In short, the District Court did not justify its unusual refusal to grant
&pizza’s leave to amend its Complaint. That refusal was an abuse of discretion
particularly since the District Court identified ways in which &pizza could have
pled its claims sufficiently. Amendment therefore was not futile, and denying
&pizza leave to amend was an abuse of discretion.
Moreover, even though &pizza requested leave to amend in its opposition to
Defendants’ motion (MTD Oppo. at 36), the District Court denied such relief
without any explanation. “[A] proper exercise of discretion requires that the
district court provide reasons.” Firestone, 76 F.3d at 1209 (reversing the district
court’s denial of leave to amend for failure to provide reasons in denying leave to
amend, and remanding with instructions to allow plaintiffs to file their amended
complaint); Parker v. Baltimore & Ohio R.R., 652 F.2d 1012, 1018, 1020 (D.C.
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Cir. 1981) (reversing district court’s denial of leave to amend, and remanding to
the district court either to grant plaintiff leave to amend or provide sufficient
reasons for its denial). That the District Court did not even address &pizza’s
request for leave to amend, on a first motion to dismiss, is grounds alone to
reverse. Id.
II. The Court Erred in Dismissing the First Cause of Action for U.S.
Copyright Infringement By Concluding That No Act Plausibly
Constituted Infringement Within the United States.
The District Court erred in dismissing the claim for U.S. Copyright
Infringement (First Cause of Action) based on extraterritoriality. To state a claim
for copyright infringement, the plaintiff must allege: “(1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are original.’”
Stenograph L.L.C. v. Bossard Assocs., 144 F.3d 96, 99 (D.C. Cir. 1998) (citing
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
Additionally, where the conduct of foreign parties arguable may have occurred
outside of the United States, plaintiff is to allege an act of “domestic infringement”
to fall within the bundle of rights afforded under the U.S. Copyright Act. MTD
Order at 28-29.
Here, the District Court erred by concluding that no such “domestic
infringement” occurred because all of Appellees’ alleged conduct in uploading and
downloading of photos occurred overseas – factual allegations that were derived
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from Appellees’ declarations and contradicted the Complaint which was an
improper consideration at the pleading stage.3
Furthermore, &pizza had identified numerous domestic acts of infringement
in the Complaint, all of which were ignored by the District Court. The Complaint
acknowledged the issue of extraterritoriality by pleading that the copycat restaurant
was only opened successfully in Scotland, but alleged that was accomplished (1)
from downloading &pizza’s copyrighted pictures from U.S. servers, and (2) from
Defendants taking pictures of &pizza’s restaurants in the United States.
Complaint ¶¶ 39, 43 (emphasis added). Downloading of images from servers
themselves located in the United States is an act of infringement in the United
States, regardless of where the receiving computer is located, and is a sufficient
factual allegation to overcome the extraterritoriality challenge to the Complaint.
Synopsys, Inc. v. Ubiquiti Networks, Inc., No. 17-cv-00561-WHO, 2017 U.S. Dist.
LEXIS 130070, *78-79 (N.D. Cal. Aug. 15, 2017) (copyright claim overcame
extraterritoriality challenge at pleadings stage where it was “replete” with
allegations that the defendants accessed “software stored on servers in the United
States” to download); Liberty Media Holdings, LLC v. Vinigay.com, No. CV-11-
3
“Factual allegations in briefs or memoranda of law may not be considered when
deciding a Rule 12(b)(6) motion, particularly when the facts they contain
contradict those alleged in the complaint.” Jefferies v. District of Columbia, 917 F.
Supp. 2d 10, 24 (D.D.C. 2013).
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280-PHX-LOA, 2011 U.S. Dist. LEXIS 153615, **14-16 (D. Ariz. Dec. 27, 2011)
(extraterritoriality defense “inapplicable” where foreign defendants “unlawfully
download[ed] from Plaintiff’s web server in Tampa, Florida.”); Elsevier Ltd. v.
Chitika, Inc., 826 F. Supp. 2d 398, 403 (D. Mass. 2011) (even where no act in U.S.
was alleged, pleadings challenge based on extraterritoriality failed because “factual
issues involving the structure of the Internet and the locus of the infringing activity
remain (Where did the copying take place? Where are the third-party websites and
servers, from which unauthorized copies of plaintiffs’ books were downloaded?)”).
Despite these allegations, the District Court still incorrectly found that
&pizza had not alleged a domestic act of infringement. MTD Order at 30. The
District Court ruling ignored &pizza’s allegations and instead relied on
Defendants’ place of residence as to their location of infringement, an
impermissible attempt to try the facts and argue the merits at the pleadings stage
prior to discovery. MTD Order at 29 (“Here, IMAPizza’s allegations are
insufficient given the undisputed fact that Defendants (and presumably, their
computers) reside in the United Kingdom.”) As demonstrated below, the
Complaint overcame the non-jurisdictional extraterritoriality challenge by
sufficiently pleading infringement in the United States under either the “complete-
act” or “partial-act” tests for extraterritoriality under the Copyright Act.
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A. &pizza Adequately Stated a Claim for Copyright

Infringement Pursuant to the “Complete-Act” Test for
Extraterritoriality Under the U.S. Copyright Act.
An extraterritoriality challenge to copyright infringement is well-established:
It applies only where infringement was “entirely abroad” and “all the copying or
infringement occurred outside the United States.” Tire Eng’g & Distribution. Ltd.
Liab. Co. v. Shandong Linglong Rubber Co., 682 F.3d 292, 307-308 (4th Cir.
2012) (adopting predicate-act approach employed by other circuits); c.f. Rundquist
v. Vapiano SE, 798 F. Supp. 2d 102, 123 (D.D.C. Jul. 20, 2011) (“there is no cause
of action under the Copyright Act for acts of infringement that occur completely
outside the United States”). Even under this more restrictive complete-act theory
of extraterritoriality, there was legal support (both case law and policy-based) for
treating a download from a U.S. website as occurring at the place of the U.S. server
where the copying took place. &pizza’s opposition to the motion to dismiss cited a
number of authorities supporting the legal proposition that a download from a U.S.
server constitutes a U.S. predicate act sufficient to show an act of domestic
infringement. MTD Oppo. at 22 n.7 (citing Synopsys, Inc. v. Ubiquiti Networks,
Inc., No. 17-cv-00561-WHO, 2017 U.S. Dist. LEXIS 130070, *78-79 (N.D. Cal.
Aug. 15, 2017)); Liberty Media Holdings, LLC v. Vinigay.com, No. CV-11-280-
PHX-LOA, 2011 U.S. Dist. LEXIS 153615, **14-16 (D. Az. Dec. 21, 2001);
Elsevier Ltd. v. Chitika, Inc., 826 F. Supp. 2d 398, 403 (D. Mass. 2011). The three
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exemplative authorities cited by &pizza all expressly identified the server location
in the U.S. as the link (or at least a link) to the U.S. that supported application of
U.S. copyright law to copyright claims. Server location was obviously relevant to
these courts’ decision to apply U.S. copyright law, or else the location of the server
would have warranted no mention from those courts, much less reliance on the
server location by those courts.
Substantial U.S. copyright policy of protecting U.S. works against
infringement further supports this approach. A contrary rule would mean that an
illegal video download company could purchase legitimate copies of all U.S.
movies, and distribute them to the entire world (other than the U.S.) from a U.S.
server without any liability under U.S. copyright law, with the U.S. movie
company powerless to pursue complete relief unless it did so under the copyright
laws of the 194 countries in the world other than the U.S. And it makes sense to
hold downloading parties that reaches into the U.S. through U.S. servers to
facilitate such exchange of infringing content accountable through U.S. copyright
laws.
Although Appellees and the Court disagreed that a download from a U.S.
server is enough to access U.S. copyright law, there is no controlling authority
rejecting &pizza’s pragmatic and policy-supported theory to downloading as
predicate acts. The law remains unsettled in this Circuit – and is ripe for appellate
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adjudication – as to whether the location of where the “copy” is made is deemed
the location of the receiving computer. Highlighting this unsettled law, the portion
of the Court’s Order for its conclusion on this point cited a single “cf.” (i.e., not
directly on point but relevant by analogy) to an unpublished decision from
California. Id. (citing MTD Order at 27 citing as cf. Columbia Pictures v. Fung,
No. CV 06-5578 SVW (JCx), 2009 U.S. Dist. LEXIS 122661, *8 (C.D. Cal. Dec.
21, 2009)).
Moreover, the cited Columbia decision could be read as holding that either
the location of the sender or recipient in the U.S. is sufficient to apply U.S.
copyright law. Id. at **29-30. And Columbia involved file transfers “directly
from the computers of other users and not directly from the servers,” meaning it
did not consider or resolve the issue of whether a download – when occurring
through a U.S. server – should be treated as occurring at the situs of the server, the
receiving computer, or both. Id. at 5. Further, Columbia used the receiving
computer’s location in order to extend the U.S. copyright laws to an international
course of conduct, not to deny a plaintiff’s attempt to protect itself through
application of U.S. copyright law. That Columbia found the location of the
downloading computer may be treated as the place of infringement for the
infringement scheme in that case, does not definitively foreclose a court from
treating the server as the location under appropriate circumstances. The Court
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applied the unpublished Columbia decision as the sole theory to reject &pizza’s
server situs theory in error, which does not warrant dismissal of &pizza’s U.S.
copyright infringement claim.
B. &pizza Further Alleged Extraterritoriality Under the “Not

Entirely Abroad” (or “Part of an Act of Infringement”)
Test.
A number of courts find the types of acts here to be actionable. The District
Court acknowledged cases applying the U.S. Copyright Act where “even part of an
act of infringement” was in the U.S. See MTD Order at 29 (emphasis in original).
The Court’s Ninth Circuit citation was further supported by &pizza’s citation to
authority applying this test from the Fourth Circuit, other circuits and even in this
Circuit. MTD Oppo. at 21. &pizza’s brief also presented case law expressly
identifying U.S. server location and access to the same, as sufficient to justify a
U.S. Copyright infringement claim. See also MTD Oppo. at n.7. On this record, at
the time of briefing, there was no requirement that an entire infringing act occur
within the United States.
Under the “part of an act of infringement” standard, &pizza further alleged
extraterritoriality for the opening of a copycat restaurant successfully in Scotland
based on (1) downloading &pizza’s copyrighted pictures from U.S. servers, and (2)
taking pictures of &pizza’s restaurants in the U.S. Complaint ¶ 43. Both acts were
an essential step of the opening of a substantially similar copycat restaurant abroad,
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which infringes &pizza’s copyrights (under the laws of at least one country, either
the U.S. or U.K.). While the ultimate merit of these facts were rejected by the
District Court, such allegations on the record demonstrate that &pizza adequately
plead an act of domestic infringement sufficient to satisfy the extraterritoriality
challenge. See, e.g., Litecubes, LLC v. N. Light Prods., Inc., 523 F.3d 1353, 1363
(Fed. Cir. 2008) (“[A] limitation on the extraterritorial scope of a statute is no
different than any other element of a claim which must be established before relief
can be granted under a particular statute.”).
The Court’s MTD Order placed foundational reliance on the D.C. Circuit’s
March 2, 2018 Spanski decision in determining how to apply principles of
extraterritoriality. See MTD Order at 22, 24 and 29 applying Spanski Entes., Inc.
v. Telewizja Polska, S.A., 883 F.3d 904 (D.C. Cir. 2018).4/ The Spanski decision
was issued a year after the Complaint was filed and well after the MTD Opposition
was filed, not allowing either party to address that case. See MTD Order at 22 n.7.
The District Court held that a domestic act of infringement requires the
performance to occur in the United States, focusing only on the fact that the
Spanski foreign Defendants’ performance “occurred on viewers’ computer screens
4/
MTD Order at 22 (“the D.C. Circuit recently addressed the territorial limits of the
Copyright Act in Spanski), 24 (citing Spanski); 29 (the “principle” of the more
liberal part-of-an-act standard for extraterritoriality “typically comes into play in
case involving the exclusive right to distribute, display or perform copyrighted
works”) (citing Spanski).
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in the United States.” MTD Order at 22. However, the MTD Order overlooks the
Spanski court’s ultimate policy holding applicable to this matter -- that the
extraterritorial issue is determined by whether “the conduct relevant to the statute’s
focus occurred in the United States,” such that it involves a permissible domestic
application of the Copyright Act, “even if other conduct occurred abroad.”
Spanski, 883 F.3d at 913. Where, as here, there is substantial infringing conduct
that occurred within the United States – illicit downloading of U.S. copyrighted
material from U.S. servers in violation of &pizza’s exclusive right of reproduction
– domestic application of the Copyright Act is proper against foreign Defendants.
Id. Thus, the District Court’s reliance on Spanski to the facts of this case was an
error of law.
&pizza recognizes that mere visits to &pizza’s U.S. restaurants does not
constitute copyright infringement. See Complaint at ¶¶ 34-43. However, &pizza
claim for relief under the Copyright Act alleged a scheme that began in the U.S.
and culminated with the opening of an infringing restaurant in Scotland:
• Visiting U.S. restaurants to ultimately perfect this copycat scheme
was one of many “key components of Defendants’ scheme [that]
occurred in the U.S.” so as to apply the Copyright Act under the “not
entirely abroad” extraterritoriality test. MTD Oppo. at 21-22.
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• Taking pictures of the architecture while there (even if itself not a
completed act in light of Section 120(a)) was another of those “key
components” acted in combination to show an infringement “not
entirely abroad.” Id.
Had such key components been held sufficient to fit the “not entirely
abroad” test, then the construction of a restaurant with copycat architecture and
interior design would have readily constituted copyright infringement
(notwithstanding Section 120(a)). Builders Mut. Ins. Co. v. Donald A. Gardner
Architects, Inc., 856 F. Supp. 2d 773, 777 (D.S.C. 2012) (“[I]f in fact a photograph
of a building is used to facilitate an infringement of the architect’s rights in his
plans or the structure, that infringement is actionable irrespective of whether the
photograph itself is protected by [§ 120].”).
To sum up simply, the downloading of &pizzas images violated &pizza’s
reproduction right. So did the building of a copycat restaurant. Such infringement
could be pursued under U.S. copyright law and is supported by meaningful case
law and copyright policy.
III. The Court Erred in Dismissing the Third and Fourth Causes of Action
under the Lanham Act by Concluding the Complaint Failed to Justify
Extraterritorial Application of the Lanham Act.
The Lanham Act reaches extraterritorial conduct that has at least “some
effect on United States foreign commerce” subject to the traditional considerations
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of extraterritoriality. Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d
406, 428 (9th Cir. 1977) (stating test for foreign defendants). Although the D.C.
Circuit offers no binding authority on the extraterritorial extension of the Lanham
Act, the District Court dismissed &pizza’s Lanham Act claim on grounds that even
under the more generous approach, &pizza failed to allege facts suggesting an
effect on U.S. commerce “under any test.” MTD Order at 32-33. However, the
Complaint more than plausibly meets the Lanham Act’s minimum thresholds of
extraterritoriality. Addressing the extraterritoriality issue from the start, &pizza’s
Complaint touched on a host of the factual considerations identified in the case
law, which support a sufficient effect on either U.S. interstate or foreign commerce
to justify the Lanham Act’s extraterritorial application. Complaint ¶¶ 65, 66, 72,
74, 75.
The District Court accurately held that an extraterritoriality challenge bears
on the merits and thus “must be evaluated under Rule 12(b)(6)” for purposes of
Appellees’ motion to dismiss. MTD Order at 30 (relying on Trader Joe’s Co. v.
Hallatt, 835 F.3d 960, 968 (9th Cir. 2016)). Thus, the question is solely one of
plausible pleadings performed under Rule 12(b)(6). Id.
The District Court incorrectly focused only on the issue that “there is no
allegation that Defendants have made any purchase of supplies or sales of pizza in
the United States, or even that their products or advertisements have entered the
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United States through the stream of commerce.” MTD Order at 32. The District
Court further suggested that had &pizza alleged that its potential business partner
was located in the United States and sustained harm from loss of business to
@pizza in the United States, then it could have overcome Defendants’ Rule
12(b)(6) challenge. MTD Order at 33-34.5
&pizza also appropriately defended these allegations in opposing the motion
to dismiss. It acknowledged that Defendants currently had “one restaurant” in
Scotland, but explained over a half-dozen factual considerations that supported the
plausibility of the conclusion that (at the least) the “some effect” test for
extraterritoriality was met. MTD Oppo. 23-24. This included the Complaint’s
identification of a host of facts and reasonable inferences, such as (1) centrality of
U.S. activity to the infringement scheme, (2) effect on a U.S. company, (3)
indication of an explicit purpose to harm a U.S. company, (4) the advance warning
and foreseeability of an effect on such U.S. company, (5) permanent nature of the
infringing use, (6) 25 million euros annually spent by U.S. tourists dining in
Edinburgh, (7) substantial presence of U.S. students, and (8) actual instances of
5
The District Court noted that &pizza could have pleaded (1) harm arising from
this incident, (2) that it wanted to do business with this unidentified business
partner, (3) that it lost business to @pizza as a result of this episode or any other,
(4) or that this potential business partner was located in the United States. MTD
Order at 33-34. The Court did not permit &pizza an opportunity to amend its
Complaint with these suggested allegations.
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confusion as to affiliation between the two companies, including a potential
investor of &pizza. Id. (citing Complaint ¶¶ 22, 65, 66, 72, 74, 75). All of these
plausible inferences shows the required “some effect” on U.S. foreign commerce to
sustain a claim for relief based on the existing facts known prior to any discovery
or the typical expert surveys taken in a trademark case. Id.; Wells Fargo & Co.,
556 F.2d at 428.
In addition, while the Court and Defendants focused on there being a single
location, relying on Defendants’ marketing material, the Complaint explained the
Edinburgh location was merely the “first location” in Defendants’ “scheme to open
a copycat restaurant chain” – the Lanham Act exists just for the purpose of
stepping in before an infringement scheme’s full foreseeable damage is felt.
Complaint ¶¶ 18, 66(b), 67(f), 73.
The MTD Opposition offered meaningful distinctions for Defendants’
posited case law. MTD Oppo. at 24. &pizza also explained how a likelihood of
confusion – the crux of an infringement claim – damaged its goodwill and
reputation, analogizing the present case to at least two cases finding such an effect
satisfies the Lanham Act’s extraterritorial reach. Id. at 24-25.6
6
Citing Warnaco Inc. v. VF Corp., 844 F. Supp. 940, 951 (S.D.N.Y. 1994) and
Kroma Makeup EU, Ltd. v. Boldface Licensing + Branding, INc., No. 6:14-cv-
1551-Orl-40GJK, 2015 U.S. Dist. LEXIS 49534, *25-26 (M.D. Fla. Apr. 15,
2015).
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&pizza also cited MGM Resorts and its online casino in the MTD
Opposition – because a business that foreseeably sets itself up to access a
substantial number of U.S. consumers has an effect on U.S. commerce (including
activity that has “some effect on American foreign commerce,” not just commerce
within U.S. borders as the MTD Order seemed to require). See Trader Joe’s 835
F.3d at 969 (alteration added); MTD Order at 35 n.8 (discussing MGM Resorts v.
Unknown Registrant, 2015 WL 5674374 (D. Nev. Jul. 8, 2015). Extraterritorial
jurisdiction is present where such intentional violations of the Lanham Act are
alleged to result in losses to a U.S. corporation resulting in a foreseeable effect on
U.S. commerce. See, e.g. MGM Resorts Int’l v. Unknown Registrant of
www.imgmcasino.com, No. 2:14-cv-1613-GMN-VCF, 2015 U.S. Dist. LEXIS
128397, *9-14 (D. Nev. Jul. 8, 2015) (explaining how each factor militated toward
extraterritorial application of Lanham Act when Panama defendant intentionally
opened an “MGM” casino).
The Court ultimately rejected these detailed allegations as rising to the level
of having any plausible effect on U.S. commerce (MTD Order at 32) – a
substantial leap and inaccurate application of Lanham Act policy and guiding
principle to protect U.S. citizens’ trademark rights. Accordingly, dismissal of
&pizza’s Lanham Act claims should be reversed.
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IV. The Court Erred in Dismissing the Fifth Cause of Action for Trespass
by Concluding it Failed Based on Consent and Scope Of Consent and
the Inapplicability of Fraud or Mistake.
In predicting “how the District of Columbia Court of Appeals would decide
the issue,” the District Court found that &pizza could not plausibly allege the
unauthorized entry element of a trespass claim because &pizza’s facilities are
publicly accessible. Thus, the prong of “unauthorized entry” – although stated
with factual support multiple times in the Complaint – was not plausible and the
District Court dismissed the claim as a matter of law without leave to amend.
MTD Order at 35. Ultimately, the Court held that “if a restaurant has opened itself
to the public, then its consent to enter reasonably extends to competitors as well,
even if they harbor an ulterior motive of studying the restaurant for their own
gain.” MTD Order at 41. Nevertheless, this broad holding does not comport with
limitations on the claim of trespass where: (1) the pleadings plausibly and
repeatedly allege unauthorized entry, (2) the wrongful actor exceeds the scope of
the consent provided, or (3) consent is procured through fraud or mistake.
First, the record reflects that &pizza alleged unauthorized entry by Appellees
on numerous occasions whereby further concrete facts were not necessary for
pleading purposes. The Complaint alleges “[e]ach of Defendants, without
authorization, entered numerous of @pizza’s Washington, D.C. locations for the
purpose of interfering with &pizza’s right to control the properties and exclude
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others” and did so for competitive purposes. Complaint ¶¶ 81-83. Defendants also
took their undisclosed agents onto these &pizza premises to surreptitiously provide
on-the-job training in how to copy &pizza’s business, marketing, and operations.
Id. ¶ 84. Unauthorized entry was thus repeatedly alleged. Id. ¶¶ 81-85.
Second, the District Court erred in concluding that “assuming Defendants
did indeed misrepresent their intents, that misrepresentation did not concern the
nature of the invasion of plaintiff’s property interest and could not have vitiated
IMAPizza’s consent for them to enter.” MTD Order at 39. This reasoning
overlooks the core surreptitious premise of Appellees’ intent upon entering
&pizza’s restaurant: to enter the restaurant for the purpose of stealing &pizza’s
intellectual property. Indeed, a competitor’s use of access for tortious acts pleads a
trespass claim, even where consent is pled. Democracy Partners v. Project Veritas
Action Fund, 285 F. Supp. 3d 109, 118-19 (D.D.C. 2018); Counsel on American-
Islamic Rels. Action Network v. Gaubatz (“CAIR”), 793 F. Supp. 2d 311, 345
(D.D.C. 2011).
Third, consent, if obtained by misrepresentation, fraud, or mistake,
extinguishes that consent such that any access is unauthorized. “Consent may be
invalid when it is induced by a substantial mistake or fraud.” Restatement
(Second) of Torts § 892B(2). &pizza stated a viable clam for trespass by alleging
the element of unauthorized entry by describing Appellees’ misconduct of
32
(Page 41 of Total)
masquerading as customers for the purpose of stealing &pizza’s intellectual
property. Complaint ¶¶ 81-83. This allegation alone satisfies the trespass element
of unauthorized entry based on Appellees fraudulent intent when entering &pizza’s
restaurant.
For example, in CAIR, 793 F. Supp. 2d at 345, the defendant moved to
dismiss a trespass claim based on consent. Id. The Court rejected the argument,
explaining that “it is no defense to trespass where a competitor gains entry to a
business firm’s premises posing as a customer but in fact hoping to steal the firm’s
trade secrets.” Id. (emphasis added). Thus, because this sort of conduct “is
precisely what Plaintiffs [] alleged,” the Court explained the “consent argument is
premature” and “whether [the] argument will win out is a question that must await
discovery.” Id. (denying motion to dismiss trespass claim). Notably, the CAIR
Court did not distinguish or set any limitation between publicly accessible places
and private ones, even expressing “doubt” that “a plaintiff must plead the property
at issue was not open to the public in order to state a claim for trespass. Id. at 344.
Applying this same rationale here, the Appellees posed as customers to
engage in tortious and wrongful competitive conduct and thus consent could not
have barred &pizza’s trespass claim as a matter of law. Id. at 355 n.7 (“liability for
other tortious acts linked to an entry vitiates consent for that entry”).
33
(Page 42 of Total)
No consent was given here – express or implied. Quite to the contrary, as
noted above, the Complaint repeatedly alleges entry was unauthorized and without
consent. Complaint ¶¶ 81-83. Even if consent had been expressly pled,
Democracy Partners demonstrates that on-premise actions outside the scope of
consent state a claim for trespass. Democracy Partners, 285 F. Supp. 3d at 119
(holding secretly recording conversations exceeded the scope of any consent to
entry).
Here, as in Democracy Partners, Defendants cannot show as a matter of law
that their actions were within the scope of access afforded customers – “taking
unauthorized pictures,” “stealing &pizza’s intellectual property,” “training,” and
“perfecting a scheme of unfair competition.” Complaint ¶ 82. Appellees are
“competitors” and were not authorized to enter any of &pizza’s locations for these
purposes.” Id. ¶¶ 74, 83. Thus, as in Democracy Partners, Defendants’ access
“exceeded the scope of any consent” (if any) as pled. Democracy Partners, 285 F.
Supp. 3d at 119 (allegation of exceeded scope of consent “is also sufficient to state
a claim for trespass”). The District Court side-stepped this second, independent
basis for a valid trespass claim, which obviates any “publicly accessible” defense
to the claim. MTD Order at 39-40.
Namely, Appellees used their trespass to steal intellectual property, perfect
an unfair competition scheme to copycat the restaurant, train competing
34
(Page 43 of Total)
management on the trespassed facility, and snap unauthorized pictures to use in
passing off the restaurant. See Complaint ¶ 82. This interference with &pizza’s
establishments is more than enough to plausibly state a claim for trespass under
D.C. law and dismissal of this claim must be reversed.
V. The Court Erred in Partially Granting and Denying Appellant’s Motion

for Leave to File Surreply (Dkt. No. 36).
It is “well-settled prudential doctrine that courts generally will not entertain
new arguments first raised in a reply brief.” Aleutian Pribilof Islands Ass’n, Inc. v.
Kempthorne, 537 F. Supp. 2d 1, 12 n.5 (D.D.C. 2008) (citing Herbert v. National
Academy of Sciences, 974 F.2d 196, 297, U.S. App. D.C. 406 (D.C. Cir. 1992)).
Permitting new argument would be “manifestly unfair” and the D.C. District Court
has delayed decisions on issues until the issues can be briefed more fully. Herbert
v. Nat'l Acad. of Scis., 974 F.2d 192, 196 (1992); see Berlin v. Bank of Am., N.A.,
101 F. Supp. 3d 1, 16 (D.D.C. 2015) (delaying decision on an issue relating to
dismissal until the issue could be more fully briefed, even though Plaintiffs were
permitted to file a Sur-Reply.) When new arguments are improperly raised, “the
court will either ignore those arguments in resolving the motion or provide the
non-movant an opportunity to respond to those arguments by granting leave to file
a sur-reply.” Flynn v. Veazey Constr. Corp., 310 F. Supp. 2d 186, 189 (D.D.C.
2004).
35
(Page 44 of Total)
The District Court erred by considering Defendants’ improperly raised new
arguments and evidence raised in Defendants’ Reply to its Motion to Dismiss and
further by refusing &pizza’s request to fully address these newly raised arguments
and evidence in a sur-reply. Indeed, as shown below, while Defendants raised 11
new arguments and evidence, the District Court allowed &pizza to file a sur-reply
on three arguments.
Location of New New Argument/Evidence in Defendants’ Sur-

Argument/Evidence Motion to Dismiss Reply Reply
(in Defendants’ Allowed?
Motion to Dismiss
Reply, Dkt. No. 26)
Footnotes 1-4, 6-8, New evidence and arguments based thereon. No
10 (and discussion).
Trespass Claim
Page 6 New invasion-of-interest argument. No
Section I(C) New challenge to interference-with- Yes
(p. 7) possessory-interest element of trespass.
U.S. Copyright Claim
P. 8 to p. 9 ¶ 1, p. 11 New challenge to “without authorization No
¶ 3. element” of copyright infringement, including
(1) new argument about Paragraph 40 of the
Complaint, (2) new theory that downloading
from non-restricted websites cannot be
“unauthorized” under copyright law, and (3)
new evidence.
P. 9 ¶ 2 New legal theory re 17 U.S.C. § 120(a) No
perfunctorily raised as footnote in Motion’s
discussion of downloading of images (see
Mtn. 19 n.5).
Section 2(D) New legal theory that failure to attach Yes
(pp. 13-14) copyright applications to Complaint is fatal
and incurable pleading defect.
Lanham Act Claims
P. 17 ¶¶ 2-3 New argument that Complaint ¶¶ 60, 65 must No
be disregarded. Motion credited truth of
allegations for pleading purposes. Mtn. 21
(“even if true…”).
Section 3(D) (Pages New argument and case law urging potential No
19-20) conflict with &Pizza’s U.K. applications.
Motion only argued potential conflict with
@pizza’s U.K. application. Mtn. 21.
Personal Jurisdiction
Section 4(B) New argument and case law on jurisdiction No
36
(Page 45 of Total)
(pp. 21-23) under D.C. Code Ann. § 13-423(a)(4) and

F.R.C.P. 4(k)(2). See Opp. pp. 26-27
(explaining Motion’s waiver).
Section 4(C) New argument and case law attempting for No
(pp. 23-24) first time to meet unreasonableness exception
to jurisdiction under U.S. Constitution. See
Opp. pp. 26-27, 33-34.
Forum Non Conveniens
P. 25 § 6 New motion grounds. Yes
In refusing to allow &pizza a chance to submit briefing on the remaining 8 topics
detailed in the chart above, the District Court summarily held that “they consist of
matters within the scope of Defendants’ opening brief on the motion to dismiss or
Plaintiff’s opposition.” Dkt. No. 36. The District Court does not state where or
how these arguments of first impression were previously raised by either
Defendants’ moving papers or &pizza’s opposition. The District Court’s refusal to
identify how these are not arguments of first impression while at the same time
refusing &pizza the opportunity to brief responses on this new material is error.
VI. The Court Erred in Holding There Is No Supplemental Jurisdiction

Over The Second Cause of Action for UK Passing Off If the Dismissal
Of One Or More Claims Is Reversed.
The District Court compounded its error in refusing &pizza the opportunity
to amend its Complaint when it found &pizza failed to show the existence of
supplemental jurisdiction for its U.K. passing off claim. Specifically, the District
Court declined to exercise supplemental jurisdiction because it had dismissed all
claims over which it had original jurisdiction. Dkt. No. 41 at 4. However, as
demonstrated above, &pizza’s claims of original jurisdiction should have
37
(Page 46 of Total)
remained, thus the District Court could properly exercise supplemental jurisdiction
over the U.K. passing off claim. The District Court further reasoned that the
passing off claim is brought under U.K. law and seeks injunctive relief against a
U.K. entity. Id. at 4. But this results in bad public policy. It allows citizens of the
world to come and infringe U.S. companies’ intellectual property rights while
stripping away U.S. companies’ ability to seek justice for infringement of their
intellectual property rights within the U.S.
CONCLUSION
For the foregoing reasons, the District Court’s Order granting the
Defendants’ Motion to Dismiss without leave to amend should be reversed.

David Barmak
Popeo P.C.
(202) 434-7300
dbarmak@mintz.com
38
(Page 47 of Total)
CERTIFICATE OF COMPLIANCE
This document complies with the Federal Rule of Appellate Procedure 32 et
seq. because, excluding the parts of the document exempted by Federal Rule of
Appellate Procedure 32(f), this document contains 8,841 words.

David Barmak
Popeo P.C.
(202) 434-7300
dbarmak@mintz.com
39
(Page 48 of Total)
CERTIFICATE OF SERVICE
I, the undersigned, certify and declare that I am over the age of 18 years,
employed in the District of Columbia, and am not a party to the above-entitled
action.
On July 5, 2019, I filed a copy of the foregoing document by electronically
filing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to all CM/ECF registered users.
Further, a courtesy copy of the forgoing document was sent to Defendants-
Appellees’ counsel via email to mdowd@dowdscheffel.com.
Executed on July 5, 2019, at Washington, D.C.
/s/ David Barmak

David Barmak
Matthew James Dowd Attorneys for Appellees

Dowd PLLC AT PIZZA LIMITED, BHASKER
1717 Pennsylvania Avenue, NW DHIR AND RUPERT LYLE
Suite 1025
Washington, DC 20006 mjdowd@dowdpllc.com
Patricia Y. Ho pho@sheridanross.com
Sheridan Ross P.C.
1560 Broadway, Suite 1200
Denver, CO 80202
U.S. District Court
District of Columbia
Hon. Timothy J. Kelly
333 Constitution Avenue N.W.
(Page 49 of Total)
89276518v.3
1
United States Court of Appeals

for the
District of Columbia Circuit
No. 18-7168
IMAPIZZA, LLC,
Plaintiff-Appellant,
–v–
AT PIZZA LIMITED; BHASKER DHIR; RUPERT LYLE,
Defendants-Appellees.
___________________________
ON APPEAL FROM THE U.S. DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
APPELLANT’S DESIGNATION OF PORTIONS

OF THE RECORD TO BE INCLUDED IN THE
DEFERRED JOINT APPENDIX
Andrew D. Skale
David Barmak
(Application for Admission Pending)
701 Pennsylvania Avenue, NW, Suite 900
3580 Carmel Mountain Road, Suite 300
San Diego, California 92130
(202) 434-7300
(858) 314-1500
dbarmak@mintz.com
adskale@mintz.com
Attorneys for Plaintiff-Appellant
(Page 50 of Total)
Pursuant to Rule 30(c) of the Federal Rules of Appellate Procedure,
Appellant IMAPizza, LLC d/b/a &pizza (“&pizza”) designates the following
portions of the Record to be included in the Deferred Joint Appendix in the above-
captioned matter:
Item Date U.S.D.C. Description

No. Dkt. No.
1 11/03/17 1, 1-1, 1-2, Complaint (with exhibits)
1-3, 1-4, 1-5,
1-7, 1-8
2 01/12/18 18 Defendants’ Motion to Dismiss
3 01/12/18 19 Declaration of B. Dhir in support of Motion to
Dismiss (with exhibits)
4 01/12/18 20 Declaration of R. Lyle in support of Motion to
Dismiss (with exhibits)
5 01/26/18 23 Plaintiff’s Opposition to Motion to Dismiss
6 01/26/18 23-1, 23-2 Declaration of Ben L. Wagner in support of
Defendants’ Opposition to Motion to Dismiss
(with exhibits)
7 02/02/18 24 Defendants’ Motion for Leave to File Amended
Declarations
8 02/02/18 24-1 Amended Declaration of B. Dhir in support of
Motion to Dismiss (with exhibits)
9 02/02/18 24-2 Amended Declaration of R. Lyle in support of
Motion to Dismiss (with exhibits)
10 02/02/18 26 Defendants’ Reply in support of their Motion to
Dismiss
11 2/14/18 30 Plaintiff’s Motion to Strike or Disregard New
Material in Defendants’ Reply Brief in Support
of their Motion for Leave to File Sur-Reply;
Memorandum of Points and Authorities
12 07/03/18 33, 33-1 Plaintiff’s Notice of New Authority re
Defendants’ Motion to Dismiss (with Exhibit A)
13 7/26/18 36 Order re Motion to Strike or Disregard, or in the
alternative, Motion for Leave to File Surreply
14 08/22/18 37 Plaintiff’s Surreply in Opposition to
Defendants’ Motion to Dismiss
15 09/24/18 38 Memorandum Opinion and Order re Motion to
Dismiss
2
(Page 51 of Total)
16 10/03/18 41 Order re subject matter jurisdiction/diversity

jurisdiction
17 10/23/18 45 Order re dismissal
Date: July 5, 2019 By: /s/ David Barmak

David Barmak
Popeo P.C.
(202) 434-7300
dbarmak@mintz.com
Counsel for Plaintiff-Appellant
IMAPIZZA, LLC
3
(Page 52 of Total)
CERTIFICATE OF COMPLIANCE
This document complies with the Federal Rule of Appellate Procedure 32 et
seq. because, excluding the parts of the document exempted by Federal Rule of
Appellate Procedure 32(f), this document contains 282 words.
Date: July 5, 2019 /s/David Barmak

David Barmak
Popeo P.C.
(202) 434-7300
dbarmak@mintz.com
(Page 53 of Total)
1
CERTIFICATE OF SERVICE
I, the undersigned, certify and declare that I am over the age of 18 years,
employed in the District of Columbia, and am not a party to the above-entitled
action.
On July 5, 2019, I filed a copy of the foregoing document by
electronically filing with the Clerk of the Court using the CM/ECF system which
will send notification of such filing to all CM/ECF registered users.
Further, a courtesy copy of the forgoing document was sent to Defendants-
Appellees’ counsel via email to mdowd@dowdscheffel.com
Executed on July 5, 2019, at Washington, D.C.
/s/David Barmak
David Barmak
Matthew James Dowd Attorneys for Appellees

Dowd PLLC AT PIZZA LIMITED, BHASKER
1717 Pennsylvania Avenue, NW DHIR AND RUPERT LYLE
Suite 1025
Washington, DC 20006 mjdowd@dowdpllc.com
Patricia Y. Ho pho@sheridanross.com
Sheridan Ross P.C.
1560 Broadway, Suite 1200
Denver, CO 80202
U.S. District Court
District of Columbia
Hon. Timothy J. Kelly
333 Constitution Avenue N.W.
89246271v.1
(Page 54 of Total)
2

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USCA Case #18-7168 Document #1795989 Filed: 07/05/2019 Page 1 of 49

ORAL ARGUMENT NOT YET SCHEDULED

United States Court of Appeals

AT PIZZA LIMITED; BHASKER DHIR; RUPERT LYLE,

BRIEF FOR APPELLANT

Attorneys for Plaintiff-Appellant

CORPORATE DISCLOSURE STATEMENT

following corporate disclosure statement:

IMAPizza, LLC has no parent corporation, and no publicly held company

has 10% or greater ownership in IMAPizza, LLC.

IMAPizza, LLC is a limited liability company organized under the laws of

Date: July 5, 2019 /s/ David Barmak

TABLE OF AUTHORITIES ................................................................................... iii

CERTIFICATE AS TO PARTIES, RULINGS, RELATED CASES .................... vii

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 2

STATUTES AND REGULATIONS ......................................................................... 3

STATEMENT OF THE CASE .................................................................................. 3

I. &pizza’s Business Model and Pending Expansion .................................... 3

II. Defendants’ Tortious Conduct as Alleged in the Complaint ..................... 4

A. Defendants’ Copycat Scheme .......................................................... 4

B. Defendants’ Execution of Their Scheme ......................................... 4

C. &pizza Discovers Defendants’ Scheme, after which

D. The Harm to &pizza and U.S. Commerce ....................................... 9

E. Procedural Posture ......................................................................... 10

SUMMARY OF ARGUMENT ............................................................................... 11

STANDARD OF REVIEW ..................................................................................... 13

I. The Court Erred in Dismissing Appellant’s Claims Without Leave

A. &pizza Adequately Stated a Claim for Copyright Infringement

B. &pizza Further Alleged Extraterritoriality Under the “Not

V. The Court Erred in Partially Granting and Denying Appellant’s

VI. The Court Erred in Holding There Is No Supplemental Jurisdiction

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MGM Resorts v. Unknown Registrant,

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