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Clean Crawl, Inc. v. Crawl Space Cleaning Pros, Inc.

United States District Court, W.D. Washington, Tacoma

May 31, 2019

CLEAN CRAWL, INC., Plaintiff,



         This matter comes before the Court on Defendant Crawl Space Cleaning Pros, Inc.'s (“CSCP”) motion for summary judgment, Dkt. 39, the Court's Order denying the motion in part, granting it in part, and requesting supplemental briefing, Dkt. 75, and the parties' supplemental briefing, Dkts. 80, 83, 90, 91. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the remainder of the motion for the reasons stated herein.


         This suit arises from copyright and trademark disputes between Plaintiff Clean Crawl, Inc. (“CCI”) and CSCP, two businesses which clean attic and crawl spaces and provide pest exclusion services for homes in the Western Washington area. See Dkts. 48 at 7, 39 at 2.

         CCI began doing business in its current iteration in 2001 when its president, Charles Henrichsen (“Henrichsen”), transferred his Bio Bug Pest Management, Inc. business to CCI, Dkt. 48 at 6, and began using the trade name CLEAN CRAWLS, Dkt. 49, Declaration of Charles Henrichsen (“Henrichsen Decl.”) at 3.[1] CSCP, using the trade name Crawl Pros, began operations on January 9, 2013, under founder and owner Richard Herron (“Herron”). Dkt. 39 (citing Dkt. 40, Declaration of Richard Herron (“Herron Decl.”), at 1). CCI provides “air duct cleaning services, animal contamination cleaning and disposal services, pest control for commercial and residential buildings, and environmental containment.” Dkt. 48 at 7 (citing Henrichsen Decl. at 2-3, 6-7). CSCP provides “crawlspace and attic cleaning and restoration, insulation installation, crawl space encapsulation and sealing, rodent exclusion, duct sealing, and water mediation and flooding.” Dkt. 39 at 2 (citing Herron Decl. at 1). CSCP characterizes the nature of the companies' business as “substantially similar.” Dkt. 39 at 2. CCI confirms this, stating that “[i]t is undisputed that both companies provide identical, directly competing services.” Dkt. 48 at 24.

         Henrichsen declares that he met Herron in 2008 through an insulation and energy efficiency industry association and mentored Herron in starting a business, Sustainable Building and Insulation (“SBI”). Henrichsen Decl. at 3-4. Henrichsen declares that he made SBI a CCI subcontractor, and one of his employees, CCI sales representative Jared Pullen (“Pullen”), referred “many jobs” to SBI. Id. at 4. Henrichsen declares that these referrals allowed Pullen and Herron to be “heavily exposed” to CCI's “family of trademarks and copyrights” between 2010 and 2013. Id. Henrichsen also declares that all of CCI's copyrighted materials at issue “were substantially completed in the form registered in the 2008-2009 time frame.” Id. at 5. Finally, Henrichsen declares that CCI has used its trademarks and copyrights with customers in fourteen western Washington counties since 2010. Id. at 6.

         On August 14, 2017, CSCP filed a complaint against CCI in the Pierce County Superior Court for violation of Washington's Trademark Registration Act, RCW Chapter 19.77 et seq., common law trademark infringement, and violation of Washington's Consumer Protection Act (“CPA”), RCW Chapter 19.86. Dkt. 39 at 5.

         On September 6, 2017, CCI filed this lawsuit against CSCP, alleging copyright infringement, trademark infringement, false designation of origin and unfair competition, and violation of the CPA, and seeking a permanent injunction against infringement of the copyrighted materials and the trademarked materials, destruction of all infringing materials, damages, and other relief. Dkt. 1. On March 19, 2018, CSCP filed an amended answer in the instant case, asserting counterclaims and affirmative defenses. Dkt. 32.

         On September 6, 2018, CSCP filed a motion for summary judgment. Dkt. 39. On January 29, 2019, the Court granted the motion as to CCI's copyright claims for two of the five copyrighted documents at issue. Dkt. 75 at 40. The Court denied summary judgement as to CCI's trademark claims, and reserved ruling and requested supplemental briefing as to CCI's copyright claims for the remaining three documents, a Project Graph, a Project Bid Sheet, and a Venting Calculator. Id. On February 15, 2019, the parties submitted opening supplemental briefing. Dkts. 80, 83. On February 22, 2019, the parties submitted responsive supplemental briefing. Dkts. 90, 91.


         A. Summary Judgment Standard

         Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial-e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T. W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T. W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).

         B. Remaining Copyright Claims

         Pending before the Court are CCI's claims that CSCP has deliberately copied and used three of CCI's works of authorship named in pending federal copyright applications: (1) CCI's Project Graph, (2) CCI's Project Bid Sheet, and (3) CCI's Venting Calculator. Dkt. 1, ¶¶ 12, 23.

         Plaintiffs alleging copyright infringement must demonstrate: “(1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991) (“Feist ”).

         If the ownership prong is in question, the Court must consider five elements: “(1) originality in the author; (2) copyrightability of the subject matter; (3) citizenship status of the author, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (4) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff the valid copyright claimant.” Advanz Behavioral Mgmt. Res., Inc. v. Miraflor, 21 F.Supp.2d 1179, 1183 (C.D. Cal. 1998) (“Advanz”) (citing 4 Nimmer on Copyright § 13.01(A) (1997)). “[O]nly those elements of a work that are protectable and used without the author's permission can be compared when it comes to the ultimate question of illicit copying.” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir. 1994). If the second prong, copying, is at issue but the plaintiff does not have evidence of ...

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