govinfo:USCOURTS-njd-2_22-cv-01268-1

Not for Publication 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
THE DEMOCRATIC PARTY OF NJ, INC., 
organized as the NEW JERSEY 
DEMOCRATIC STATE COMMITTEE, 
 
Plaintiff, 
v. 
JAMES DEVINE, LISA MCCORMICK, 
“NJDEMS.COM”, NEW JERSEY 
DEMOCRATIC PARTY A NJ NONPROFIT 
CORPORATION, JOHN AND JANE DOES 1-
20, AND XYZ CORPORATIONS 1-20, 
 
Defendants. 
 
 
 
 
Civil Action No. 22-01268 
 
 
OPINION 
 
 
John Michael Vazquez, U.S.D.J. 
 
 This matter returns to the Court on th e motion of Defendants James Devine, Lisa 
McCormick, NJDEMS.com, and New Jersey De mocratic Party A NJ Nonprofit Corporation 
(collectively, “Defendants”) to dismiss Plaintiff’s Third Amended Complaint. D.E. 37. The Court 
reviewed the submissions in support and in opposition, 1 and considered the motion without oral 
argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below, 
Defendants’ motion to dismiss is GRANTED in part and DENIED in part. 
 
1 Plaintiff’s Third Amended Complaint will be referred to as “TAC” (D.E. 31); Defendants’ brief 
in support of its motion to dismiss will be referr ed to as “Def. Br.” (D.E. 37-1); Plaintiff’s 
opposition brief will be referred to as “Plf. Opp.” (D.E. 49); and Defendants’ reply brief will be 
referred to as “Def. Reply.” (D.E. 50). PageID:
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I. FACTUAL BACKGROUND2 
Plaintiff is the New Jersey Democratic Party Inc., organized as the New Jersey Democratic 
State Committee (“NJDSC”), the sole statewide committee authorized under state law to represent 
the Democratic Party in New Jersey. TAC ¶¶ 8, 22. Defendants Devine and McCormick are New 
Jersey residents, domestic part ners, and co-owners a nd operators of the we bsite NJDEMS.com. 
Id. ¶¶ 9-11. NJDEMS.com is a website that was registered on March 20, 2009, and has New Jersey 
listed as the “home stat e” under “Registrant C ontact Information.” Id. ¶ 12. New Jersey 
Democratic Party A NJ Nonprofit Corporation (“NJDP Inc.) is a non-profit corporation with a 
registered office in New Jersey, and Devine is th e registered agent for, and one of the trustees 
and/or officers of, this nonprofit corporation. Id. ¶ 16. 
As the official statewide co mmittee for the Democratic Party, Plaintiff maintains the 
political organization and management of the Democratic Party in New Jersey. Id. ¶ 22. This 
includes “setting the party’s standards, ideologies, and preferences to maintain the unity of the 
party throughout the state and give voters a clear depiction of who the party is, what it stands for, 
and who its standard bearers are.” Id. Since December 1, 1984, Plaintiff has used the mark “New 
Jersey Democratic Party” in its campaign materials, press releases, and other written and electronic 
communications to identify Plaintiff’s services and represent the origin of those services. Id. ¶¶ 
31, 32. Third parties, including local and national news outlets, have also used this mark to refer 
to Plaintiff since at least 1984, and Plaintiff has become “known” to “persons both inside and 
outside of New Jersey who are inte rested in the Democratic Party and its activities” as the “New 
Jersey Democratic Party.” Id. ¶ 33. Present day sources also associate the mark “New Jersey 
 
2 The factual background is taken from Plaintiff’s Third Amended Complaint (“TAC”), D.E. 31. 
When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in a 
complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). PageID:
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Democratic Party” with Plaintiff, such as Wiki data, which lists several names by which Plaintiff 
is “also known as,” including “New Jersey Democratic Party.” Id. ¶ 34. In addition, search engines 
direct searches for “New Jersey Democratic Pa rty” to Plaintiff’s webs ite and other materials 
prepared by Plaintiff. Id. ¶ 35. 
The mark “NJDEMS” has been used as th e name of Plaintiff’s website—NJDEMS.org—
since at least December 25, 1996. Id. ¶ 36. Plaintiff has operated its website at this address since 
then and uses the website in support of its “statutorily-granted authority under Title 19 as the sole 
statewide committee authorized to represent the Democratic party in New Jersey.” Id. ¶¶ 37, 106. 
Through this website and other avenues, Plaintiff communicates with voters regarding its platform 
and endorsement of candidates in statewide elections. Id. ¶¶ 25, 37. This included endorsing 
certain Democratic candidates for political office in the 2021 New Jersey general election (“2021 
Election”), as well as other upcoming election cycles. Id. ¶ 25. Plaintiff also uses the “NJDEMS” 
mark on campaign materials that it distributes in relation to el ections throughout New Jersey as 
well as on its website and social media pages to engage with the citizens of New Jersey. Id. ¶¶ 38, 
105, 107. On each of its social media pages—Fa cebook, Twitter, and Instagram, where Plaintiff 
has approximately 19,000, 14,200, and 1,584 followe rs, respectively—the “NJDEMS” mark 
appears in Plaintiff’s profile picture, and the mark also appears throughout the page on Twitter and 
Instagram. Id. ¶¶ 39, 41, 43.3 
Plaintiff alleges that in October 2021, in the days leading up to in -person voting for the 
2021 Election, and after the start of the mail-in voting period, De fendants sent an unsolicited 
political mailer (the “Mailer”) to New Jersey re sidents that was intended to deceive voters into 
 
3 Plaintiff’s Facebook page was created on August 2, 2009, Plaintiff’s Twitter account was created 
in June 2010, and Plaintiff’s Instagram account was created in March 2019. Id. ¶¶ 40, 42, 44. PageID:
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believing that the candidates depicted on the Ma iler were endorsed or supported by Plaintiff. Id. 
¶ 1. The Mailer was sent to Union County Residents, primarily in the Borough of Roselle. Id. ¶¶ 
45-46. One side of the Mailer depicted a picture of Governor Phil Murphy and Lieutenant 
Governor Sheila Oliver (who were running for re -election, and Plaintiff’s nominated candidates) 
as well as a photograph of three candidates running for the Board of Education in Roselle: Gisselle 
Bond, Yessica Chavez, and France Cortez. Id. ¶ 47 (citing Exhibit A). Along the bottom, it read: 
“Paid for by NJDEMS.COM,” “New Jersey Demo cratic Party,” and “Not authorized by any 
candidate or committee.” Id. ¶ 49. On the other side, the Mailer included photographs of the same 
five individuals, with the text, “Please be sure to vote Column 1 for school board & Column A all 
the way from Governor on Down!,” “Gisselle B ond, Yessica Chavez, & Frances Cortez are the 
best candidates for Roselle Schools!” Id. ¶¶ 50–51. 
Plaintiff claims that the Mailer, which featured the “NJDEMS” and “New Jersey 
Democratic Party” marks, str ongly implied that Plaintiff en dorsed or supported the Board of 
Education candidates, just as Plaintiff had endorsed Governor Murphy and Lt. Governor Oliver in 
the upcoming election. Id. ¶¶ 1, 48. But Plaintiff did not endorse the school board candidates. Id. 
¶ 48. Plaintiff continues that Devine and McCo rmick have an extensive history of similar 
deceptive conduct and provide numerous specific examples. Id. ¶¶ 72–95. 
II. PROCEDURAL HISTORY 
On October 22, 2021, Plaintiff filed a Complain t in the Superior Court of New Jersey, 
alleging one count of civil conspiracy. D.E. 1-1. The state court temporarily enjoined Defendants 
from “creating and publishing or tr ansmitting political flyers, communications or advertisements 
which include or imply endorsement or authorization by [Plaintiff].” D.E. 1-3, 1-9, 1-12. Plaintiff 
filed its First Amended Complaint (“FAC”) on March 8, 2022, adding five additional claims. D.E. PageID:
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1-19. Defendants then removed th e action to this Court and moved to dismiss the FAC. D.E. 1, 
4. The Court administratively terminated the motion to dismiss on April 11, 2022 and ordered that 
Plaintiff file an amended complaint. D.E. 15. On May 2, 2022, Plaintiff filed its Second Amended 
Complaint (“SAC”) and Defendants moved to dismi ss and to strike. D.E. 16, 20-1. On October 
4, 2022, the Court granted in part and denied in pa rt Defendants’ motion to dismiss and to strike 
(denying the motion to strike an d the motion to dismiss as to Count Six and granting the motion 
to dismiss as to Counts One, Two, Three, Four , and Five). D.E. 29. On November 3, 2022, 
Plaintiff filed the TAC. D.E. 31. The TAC asserts the same claims as those asserted in the SAC: 
(1) civil conspiracy (Count One); (2) a violat ion of the Anticybersquatting Consumer Protection 
Act (“ACPA”) (Count Two); (3) unfair competition claims pur suant to the Lanham Act, New 
Jersey statutory law, and common law (Counts Th ree, Four, and Five, respectively); and (4) a 
violation of New Jersey’s corporate name stat ute (Count Six). Defenda nts move to dismiss 
Plaintiff’s unfair comp etition, cybersquatting, and corporat e name statute claims (Counts Two 
through Six) under Rule 12(b)(6).4 
III. LAW AND ANALYSIS 
Rule 12(b)(6) permits a motion to dismiss fo r “failure to state a claim upon which relief 
can be granted[.]” Fed. R. Civ. P. 12(b)(6). For a complaint to surv ive dismissal under Rule 
12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face. 
Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 
570 (2007)). A claim is facially plausible “when the plaintiff plea ds factual content that allows 
 
4 Defendants also moved to dism iss Plaintiff’s civil conspiracy claim (Count One) under Rule 
12(b)(6). Because Plaintiff does not oppose dismissal of this claim, Defendants’ motion is granted 
as to Count One. See Plf. Opp. at 3 n.1 (“Plaintiff does not oppose dismissal of its claim for civil 
conspiracy (Count 1)”). PageID:
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the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 
Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery 
will uncover proof of her claims.” Connelly v. Lane Const. Corp. , 809 F.3d 780, 789 (3d Cir. 
2016). 
In evaluating the sufficiency of a complaint, district courts must separate the factual and 
legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–211 (3d Cir. 2009). Restatements 
of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of 
truth. Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 224 (3d Cir. 2011) . The Court, however, 
“must accept all of the complaint’ s well-pleaded facts as true.” Fowler, 578 F.3d at 210. In 
deciding a motion to dismiss the Court may also c onsider any “document integral to or explicitly 
relied upon in the complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (citing In re 
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 199 7) (quotation & emphasis 
omitted)); see also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a 
pleading is a part of the pleading for all purposes.”). Even if plausibly pled, however, a complaint 
will not withstand a motion to dismiss if the facts alleged do not state “a legally cognizable cause 
of action.” Turner v. J.P. Morgan Chase & Co., No. 14-7148, 2015 WL 12826480, at *2 (D.N.J. 
Jan. 23, 2015). 
A. Unfair Competition (Counts Three, Four, and Five) 
Plaintiff brings unfair competition claims against Defendants pursuant to the Lanham Act 
as well as New Jersey statutory and common law. The Lanham Act permits trademark holders to 
bring an action against persons or entities who, in connection with goods or services, use in 
commerce “any word, term, name, sy mbol, or device, or any combin ation thereof, or any false 
designation of origin,” which “is likely to cause confusion, or to cause mistake, or to deceive as to PageID:
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the affiliation, connection, or association . . . or as to the origin, sponsorship, or approval of his or 
her goods, services, or commercia l activities.” 15 U.S.C. §1125(a). To establish an unfair 
competition claim under the Lanham Act, a plaintiff must show the following: 
(1) the mark at issue is valid and legally protectable; (2) the mark is 
owned by the plaintiff; (3) the defendant used the mark in commerce 
or in connection with any goods or services or container for goods; 
and (4) this “use” was in a manner likely to create confusion 
concerning the origin of the goods or services. 
 
Freedom Funding Grp., Inc. v. Freedom Fundinggroup L.L.C., No. 20-18404, 2022 WL 3681281, 
at *10 (D.N.J. Aug. 25, 2022). 
The Court found in its October 4, 2022 Opinion that Plaintiff adequately pled the third and 
fourth elements—that Defendants used “New Je rsey Democratic Party” and “NJDEMS” in 
connection with good and se rvices in a manner that was likely to cause confusion regarding the 
origin of the good or services. D.E. 29 at 14-15. For those same reasons, which the Court adopts 
and incorporates by reference, the Court finds that Plaintiff’s allegations are sufficient to find that 
Defendants’ use was likely to cause confusion. Thus, the Court only considers whether Plaintiff 
has adequately pled that it owns valid and legally protectable marks. 
Here, because “New Jersey Democratic Part y” and “NJDEMS” have not been federally 
registered, “validity depends on proof of sec ondary meaning, unless the registered mark is 
inherently distinctive.” Buying For The Home , 459 F. Supp. 2d 310, 318 (D.N.J. 2006) 
(quoting Fisons Horticulture, Inc. v. Vigoro Indus., Inc. , 30 F.3d 466, 472 (3d Cir. 1994)). In 
evaluating the distinctiveness of a mark, the Court considers whether the mark is (1) generic; (2) 
descriptive; (3) suggest ive; (4) arbitrary; or (5) fanciful. Id. (citing Two Pesos, Inc. v. Taco 
Cabana, Inc., 505 U.S. 763, 768 (1992)). Marks that are suggestive, arbitrary, or fanciful are 
considered inherently distinctive and entitled to protection, whereas marks that are descriptive are PageID:
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only protected if they attain secondary meaning. Freedom Funding Group., 2022 WL 3681281, 
at *10-11. 
Secondary meaning exists when the mark “is interpreted by the consuming public to be not 
only an identification of the products or services , but also a repres entation of the origin of those 
products or services.” Commerce Nat. Ins. Services, Inc., v. Commerce Ins. Agency, Inc., 214 F.3d 
432, 438 (3d Cir. 2000) (citation omitted). 5 Because secondary meaning is a question of fact, a 
court need not determine at the motion to dismiss stage whether the marks in fact have secondary 
meaning. E.T. Browne Drug Co. v. Cococare Prod., Inc. , 538 F.3d 185, 192 (3d Cir. 2008). 
Instead, the Court must only consider whether Pl aintiff has plausibly a lleged that Plaintiff’s 
marks—“New Jersey Democratic Party” and “N JDEMS”—acquired secondary meaning prior to 
Defendants’ use, and whether Plaintiff’s use of these marks has been continuous.6 See Ford Motor 
Co. v. Summit Motor Prods., 930 F.2d 277, 292 (3d Cir. 1991) (citation omitted) (“With respect to 
ownership of unregistered marks, the first party to adopt a trademark can assert ownership rights, 
provided it continuously uses it in commerce.”). 
In determining whether a political organiza tion’s name and insigni a acquired secondary 
meaning, the inquiry is whether the relevant consuming class—meaning the persons in the relevant 
geographic area who are interested in that party and its activities—associates the name and insignia 
 
5 See also Dranoff–Perlstein Associates v. Sklar, 967 F.2d 852, 858 (3d Cir.1992) (explaining that 
secondary meaning exists when a business “has used words [] for so long or so exclusively or 
when it has promoted its product to such an extent that the word s do not register their literal 
meaning on the public mi nd but are instantly associated with one enterprise (internal quotation 
marks and citations omitted)). 
 
6 Plaintiff also alleges, in conclusory fashion, that its marks are “inherently distinctive.” See, e.g., 
TAC ¶ 112. Plaintiff provides no facts in support of this conclusion, and, in the Court’s view, the 
marks are descriptive. PageID:
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of that party with the political organization. Partido Revolucionario Dominicano (PRD) Seccional 
Metropolitana de Washington-DC, Maryland y Virginia v. Parti do Revolucionario Dominicano, 
Seccional de Maryland y Virginia, 312 F. Supp. 2d 1, 13 (D.D.C. 2004). Courts may consider a 
list of non-exhaustive factors, such as the duration and exclusivity of use, the nature and extent of 
advertising and promotion, the fact of copying, 7 as well as “other efforts at creating a conscious 
connection in the public’s mind between the designation and the service.” American Diabetes 
Ass’n v. Nat’l Diabetes Ass’n , 533 F.Supp. 16, 19 (E.D.Pa. 1981), aff’d, 681 F.2d 804 (3d Cir. 
1982). Courts may also consider “the existe nce of media coverage or other recognition by 
independent institutions” and “the credentials of those associated with the organization.” Cancer 
Rsch. Inst., Inc. v. Cancer Rsch. Soc., Inc. , 694 F. Supp. 1051, 1055 (S.D.N.Y. 1988) (citations 
omitted). 
Turning first to the “New Jersey Democratic Party” mark, the Court finds that Plaintiff 
plausibly pleads secondary mean ing prior to Defendants’ use and that such use has been 
continuous. Since “no later than December 1, 1984”—approximately 25 years prior to 
Defendants’ use—Plaintiff has used the “New Jers ey Democratic Party” mark “consistently in 
campaign materials, press releases, and other written and electron ic communications as a way to 
not only identify Plaintiff’s services, but also to represent the origin of those services.” Id. ¶¶ 31-
32. Likewise, since 1984, “third-par ties both inside New Jersey and across the United States,” 
including local and national news sources, have referred to Plaintiff as the “New Jersey Democratic 
Party.” Id. ¶ 33. “[P]ersons both inside and outside of New Jersey who are interested in the 
Democratic Party and its activities” also associate the “New Jersey Democratic Party” mark with 
 
7 Ford Motor Co., 930 F.2d at 292. PageID:
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Plaintiff, as do internet sources, such as Wikidata. Id. ¶¶ 33, 34. As to cred entials, Plaintiff is 
authorized by New Jersey law “to represent Democrats and the Democratic [P]arty in New Jersey,” 
and accordingly, “is tasked with maintaining the political organization and management of the 
Democratic Party within the [s]tate.” Id. ¶ 122. And those most prominently associated with 
Plaintiff—candidates nominated and/or endorsed by Plaintiff—ar e recognized leaders of the 
Democratic Party in New Jersey. Id. ¶¶ 25, 47. 8 Further, during the 2021 Election period, 
Defendants included the “New Je rsey Democratic Party” mark alongside photos of candidates 
Plaintiff endorsed in the election on the Mailer that it sent to Union County New Jersey voters to 
imply that Plaintiff also endorsed or supported the Board of Education candidates featured on the 
mailer.9 Id. ¶¶ 1, 47-49, 71, 94, 97, 102, 115-117. 
These facts are sufficient for the Court to pl ausibly infer that “New Jersey Democratic 
Party” acquired secondary mean ing prior to Defendants’ use. 10 And Defendants’ challenges do 
 
8 See Cancer Rsch. Inst., Inc, 694 F. Supp. at 1055 (citing American Diabetes Ass’n, 533 F.Supp. 
at 19, 21) (finding, in the prel iminary injunction context, that the plaintiff’s mark acquired 
secondary meaning in light of the plaintiff’s credentials, including its association with recognized 
leaders in the relevant field, among other factors). 
 
9 Contra Com. Nat. Ins. Servs., Inc. v. Com. Ins. Agency, Inc. , 214 F.3d 432, 440 (3d Cir. 2000) 
(observing that while the plaintif f emphasized “the fact of copying (i.e., the fact that [the 
defendant] also uses the [] mark in its business name) there [was] no evidence that [the defendant] 
intended to leach off the goodwill of [the plaintiff] by appropriating its mark.”); cf. Scott Paper 
Co., 589 F.2d at 1228 (explaining that secondary meaning may even be acquired as to goods or 
services to which the mark has not been applie d because of the “potential danger” that “the 
reputation of the holder of the ma rk may be tarnished” or “the us e of an infringing mark may be 
attempting to benefit from the general goodwill developed by the holder of th e protected mark.” 
(internal citations omitted)). 
 
10 See Valley Forge Mil. Acad. Found. v. Valley Forge Old Guard, Inc. , 24 F. Supp. 3d 451, 457 
(E.D. Pa. 2014) (ruling that the plaintiffs plausibly pled that its marks were inherently distinctive 
or had secondary meaning where the complaint stat ed that for about 80 y ears, and prior to the 
defendants’ use, the plaintiffs continuously used their marks in connection with their services; that 
significant time, effort, and expense had been i nvested by the plaintiffs in advertising and 
promoting these marks; and that the marks had been used by the press and other media to identify PageID:
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not persuade the Court otherwise. Defendants firs t attack Plaintiff’s allegations regarding use of 
the mark in articles, arguing that any alleged use in articles “is of little to no value” because “the 
onus is on [Plaintiff] to demonstr ate that such coverage was unsolic ited,” which Plaintiff fails to 
allege. Def. Br. at 18-19.11 But Defendants rely on authority as to the sufficiency of proof rather 
than that of the pleading. 12 Similarly, Defendants’ remaini ng arguments address the weight and 
 
plaintiffs and the services they provide); contra Com. Nat. Ins. Servs., Inc., 214 F.3d at 440 (finding 
that the court could not reasonably conclude that the mark acquired secondary meaning before the 
defendants’ use because the trade journals and pub lications that used the mark to refer to the 
plaintiff were not published until after the defendan ts’ use and because the plaintiff’s statements 
about promoting the mark through various means did not demonstrate that whether such promotion 
pre-dated the defendants’ use). 
 
11 Defendants also argue that Plaintiff “fails to give any quotes or context to the articles” and that 
only five of the articles were published in New Jersey publications. Def. Br. at 19 n.3. But Plaintiff 
does provide context—that these articles “refer to the then-chair of the NJDSC as the chairman of 
the ‘New Jersey Democratic Part y’”—and at least eight of the articles appear to have been 
published in New Jersey publications, with the othe r articles published primarily in publications 
that cover regional news. See id. ¶ 33 n.5. 
 
12 See Duraco Products, Inc. v. Joy Plastic Enterprises, Ltd., 40 F.3d 1431 (3d Cir. 1994) (review 
of a denial of a preliminary injunction); FM 103.1, Inc. v. Universa l Broadcasting of New York , 
929 F.Supp. 187, 196 (D.N.J. 1996) (summary judgment); National Distillers Products Co., LLC 
v. Refreshment Brands, Inc., 198 F.Supp.2d 474 (S.D.N.Y. 2002) (bench trial); Gameologist Grp. 
LLC. v. Scientific Games Intern., Inc., 838 F.Supp.2d 141 (S.D.N.Y. 2011) (summary judgment); 
LVL XIII Brands v. Louis Vuitton Malletier S.A. , 209 F.Supp.3d 612 (S.D.N.Y. 2016) (summary 
judgment). PageID:
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relevance of the evidence.13 Yet, the Court’s role at this stag e is to determine whether, accepting 
the well-pleaded facts as true, secondary meaning is sufficiently pled.14 
Turning to “NJDEMS,” Plaintiff has pled that it uses the NJDEMS mark in its domain 
name—NJDEMS.org—in support of its statutorily-granted authority, and that this has been the 
name of its website sinc e at least December 25, 1996. Id. ¶¶ 24, 36, 37. Through this website, 
Plaintiff endorses certain Democrat ic candidates to inform voters that it has determined that the 
election of those candidates would be beneficial to Plaintiff’s objectives. Id. ¶¶ 25, 105. Plaintiff 
also uses “NJDEMS” on campaign materials that it distributes in relation to elections throughout 
 
13 Defendants argue that the Wiki data page allegation “weighs” in Defendants’ favor because 
Plaintiff’s page was created in 2014 and the “New Jersey Democratic Party” entry was not added 
until September 2020, “[t]hu s even Wikidata bots and editors did not associate” the mark with 
Plaintiff “for over six years after the creation of Plaintiff’s [] page.” Def. Br. at 20-21; Def. Reply 
at 11-12. Defendants also contend that the search engine results are not relevant because they were 
run on November 3, 2022, and “the only relevant dates for this action are March 20 and March 30, 
2009,” and because Plaintiff must “demonstrate” that it did not manipulate the rests. Def. Br. at 
21-22; Def. Reply at 12. But these allegations go to scope and continuity of use, and at the pleading 
stage, the Court accepts the well -pleaded facts as true. The C ourt notes, however, that search 
engine results alone—absent allegations about whether the relevant market of consumers visit the 
pages that are populated—do not necessarily support a findi ng of secondary meaning. See Utah 
Lighthouse Ministry v. Found. for Apologetic Info. & Rsch., 527 F.3d 1045, 1051 (10th Cir. 2008) 
(“[T]he number of search engine ‘hits’ would support [the plaintiff’s] claim of secondary meaning 
only if accompanied by some kind of evidence that the relevant market of consumers had visited 
the websites containing these hits.’”). 
14 Defendants’ abandonment argument is also improper at this stage. Defendants argue that “based 
on [Plaintiff’s] submitte d evidence for a twenty-two-year period,” “Plaintiff took no steps to 
protect or use” the “New Jersey Democratic Party” mark and thus abandoned the mark. Def. Br. 
at 24-28. This argument is premature, and it improperly places the burden on Plaintiff. See 3 
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 17:5 (5th ed.) (“Abandonment is an 
issue of fact, subject to the nor mal procedural rules governing factual issues, such as summary 
judgment and the scope of review on appeal.”); see also interState Net Bank v. NetB@nk, Inc., 348 
F. Supp. 2d 340, 352 (D.N.J. 2004) (explaining th at the party asserting abandonment has the 
burden of proof). Likewise, the USPTO determination that Defendants rely on is not dispositive. 
See Def. Br. at 13-15; Def. Reply at 10-11; see also Lorillard Techs., Inc. v. NJ Ale House, LCC, 
No. 14-2044, 2015 WL 1197531, at *9 n.5 (D.N.J. Mar. 13, 2015) (citation omitted) (declining to 
find the USPTO determination dispositive at the motion to dismiss stage, as the parties will likely 
present more evidence than the USPTO had available when making its determination). PageID:
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New Jersey, and on its website and social media pages to engage with the citizens of New Jersey, 
such that the public associates the “NJDEMS” mark with Plaintiff and the services and goods that 
Plaintiff provides. Id. ¶¶ 38, 105, 107, 112. On each of its social media pages—Facebook, 
Twitter, and Instagram—“NJDEMS” appears in Plai ntiff’s profile picture, and it also appears 
throughout the page on Twitter and In stagram. ¶¶ 39-40, 41-42, 43-44. 15 Plaintiff’s Facebook 
page was created in August 2009, its Twitter account in June 2010, and its Instagram account in 
March 2019, and these pages have a pproximately 19,000, 14,200, and 1,600 followers, 
respectively. Id. In the days leading up to in-person voting for the 2021 Election, Defendants used 
the “NJDEMS” mark on the Mailer, and as part of their website, to deceive the Union County New 
Jersey voters into believing that Plaintiff endors ed the Board of Election candidates featured on 
the Mailer. Id. ¶¶ 1, 92, 114-117. 
These allegations allow the Court to reasona bly infer that “NJDEMS” has now acquired 
secondary meaning; however, they do not plausi bly show that “NJDEMS” acquired secondary 
meaning as of March 20, 2009, the date on which Defendants alle gedly registered 
“NJDEMS.com.” TAC ¶ 12. The TAC’s only allegation predating Defendants’ use is that “[t]he 
mark ‘NJDEMS’ has been the name of Plaintiff’s website since at least December 25, 1996.” Id. 
¶ 36. Without more, the Court cannot reasonably infer public recognition as of March 20, 2009. 
For example, Plaintiff does not allege how many users visited Plaintiff’s website, nor does Plaintiff 
allege that the mark was prominently featured (o r featured at all) on the website itself prior to 
March 20, 2009. And while Plaintiff alleges generally that “NJDEMS” is used in association with 
various campaign distributions throughout New Jersey, the pleadings do not allege whether these 
 
15 Plaintiff’s Facebook page was created on August 2, 2009, Plaintiff’s Twitter account was created 
in June 2010, and Plaintiff’s Instagram account was created in March 2019. PageID:
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distributions pre-date March 20, 2009, and if s o, the volume of the di stributions pre-dating 
Defendants’ use (for example, by alleging how many individuals or households were on Plaintiff’s 
mailing list, and how often such mailings were sent). While Plaintiff does not necessarily need to 
plead each one of these facts, without more pert aining to the scope and vo lume of Plaintiff’s use 
of “NJDEMS” prior to Defendants’ use, the Co urt cannot reasonably infer secondary meaning in 
the minds of the consuming public. See Commerce Nat. Ins. Services, Inc., 214 F.3d at 438 (“A 
plaintiff must establish secondary meaning in a mark at the time and place that the defendant began 
use of the mark.”); Scott Paper Co. v. Scott's Liquid Gold, Inc., 589 F.2d 1225, 1231–32 (3d Cir. 
1978) (the proper test is whether [the plaintiff] had established secondary meaning in the [] market 
before [the defendant] began using its mark.”). 
Accordingly, the Court grants Defendants’ motion to dismiss the unfair competition claims 
as to the “NJDEMS” mark and denies Defendants’ motion to dismiss the unfair competition claims 
as to the “New Jersey Democratic Party” mark.
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B. Cybersquatting (Count Two) 
Plaintiff also claims that Defendants violated the Anticybersquatting Consumer Protection 
Act (“ACPA”) TAC ¶¶ 104-110. “[C]ybersquatting is the act of registering, in bad faith and to 
garner profit, on the internet a domain name so similar to a distinctive mark that it is confusing.” 
Green v. Fornario , 486 F.3d 100, 103 n. 5 (3d Cir. 2007). To prevail on an ACPA claim, the 
plaintiff must prove that (1) plaintiff’s mark was a distinctive or famous mark entitled to protection 
at the time of registration; (2) defendants’ domai n name is “identical or confusingly similar to” 
 
16 See Buying For The Home, 459 F. Supp. 2d 310, 317 (D.N.J. 2006) (“Because the elements of 
a claim of unfair competition under the Lanham Act are the same as for claims of unfair 
competition and trademark infringement under New Jersey statutory and common law, the Court's 
analysis [above] extends to Plaintiff's state law claims as well.”). PageID:
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plaintiff’s mark; and (3) defendants registered the domain name with the bad faith intent to profit 
from the mark. Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001). 
For the same reasons outlined in its prior Opinion, D.E. 29 at 16-18, which the Court adopts 
and incorporates by reference, the Court finds that the TAC adequately pleads the second and third 
elements—that Defendants’ domain name is identic al or confusingly similar to Plaintiff’s mark 
and that Defendants registered the domain name with the bad faith intent to profit from the mark.17 
Thus, the Court only considers the first element—wh ether Plaintiff has alleged sufficient facts to 
establish that its mark (“NJDEMS”) was a distin ctive or famous mark at the time Defendants 
registered their domain name, “NJDEMS.com.” 15 U.S.C. §1125(d)(1)(A)(ii)(I) and (II). The 
following factors may be considered when making this inquiry: 
(A) the degree of inherent or acqui red distinctiveness of the mark; 
(B) the duration and extent of use of the mark in connection with the 
goods or services with which the mark is used; (C) the duration and 
extent of advertising and publicity of the mark; (D) the geographical 
extent of the trading area in which the mark is used; (E) the channels 
of trade for the goods or services with which the mark is used; (F) 
the degree of recognition of the mark in the trading areas and 
channels of trade used by the ma rks' owner and the person against 
whom the injunction is sought; (G) th e nature and extent of use of 
the same or similar marks by third parties. 
 
Shields, 254 F.3d at 482 (citing 15 U.S.C. §1125(c)(1)). 
 
17 Defendants appear to acknowledge that the Court’s prio r decision as to bad faith is the law of 
the case, citing to Walker in support of its argume nt that “the Court shoul d reconsider its earlier 
decision” as to bad faith. Def. Reply at 13 (citing Walker v. Coffey, 956 F.3d 163, 170 (3d Cir. 
2020). As Walker notes, reconsideration of previously de cided issues may be warranted “under 
‘extraordinary circumstances,’ such as if new evidence becomes available, a supervening law has 
been introduced, or the prior decision was ‘clearly erroneous and would create manifest injustice.’” 
Walker, 956 F.3d at 170 (citations o mitted). Defendants fail to a llege, much less establish, that 
extraordinary circumstances exist to reconsider its prior decision as to bad faith. See Def. Br. at 
17-18 (conflating the secondary mean ing and bad faith analyses); see also Def. Reply at 13 
(asserting that the “earlier deci sion was clearly erroneous,” w ithout offering support for this 
assertion, or the assertion that the prior decision “would create manifest injustice.”). PageID:
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As determined above in connection with th e unfair competition clai ms, Plaintiff has not 
sufficiently pled facts to support a finding that its “NJDEMS” mark acquired secondary meaning 
before Defendants’ use.18 As a result, the TAC does not plead adequate facts to support a finding 
that “NJDEMS.org,” which incorporates the “N JDEMS” mark, had acquired secondary meaning 
by March 20, 2009, the date on which Defendants al legedly registered “NJDEMS.com.” TAC ¶ 
12. Thus, Defendants’ motion to dismiss Count Two (cybersquatting) is granted. 
C. Violation of Corporate Name Statute (Count Six) 
Plaintiff also asserts a corporate name claim pursuant to New Jersey law. Under N.J. Stat. 
Ann. § 15A:2-2, a nonprofit’s corporate name “[s]hall not be the same as, or confusingly similar 
to, the corporate name of any domestic corporation” unless that corporation or corporate entity has 
provided appropriate written consent or a court has rendered a final judgment establishing the prior 
right of the corporation to use the name in this state. N.J. Stat. Ann. §15A:2-2(a)(2). A nonprofit’s 
corporate name is “confusingly similar” where the name being used by defendant has widespread 
recognition such that “[i]t may we ll be assumed by the public that any unit bearing that name is 
part of the larger organization and shares its prestige.” See New Jersey Ass'n for Child. with 
Learning Disabilities v. Burlington Cnty. A ss'n for Child. with Learning Disabilities , 163 N.J. 
Super. 199, 208, (Ch. Div. 1978), aff'd in part, rev'd in part on other grounds, 174 N.J. Super. 149, 
 
18 The cases that Plaintiff relies on are distinguishable for this reason. See Plf. Opp. at 26 (citing 
CSC Holdings, LLC v. Optimum Networks, Inc. , 731 F. Supp. 2d 400, 407-08 (D.N.J. 2010) 
(accepting as true the allegation that the “Optimum” mark was registered and incontestable, and 
in turn, finding that the domain name incl uding such mark was entitled to protection); Emerson 
Radio Corp. v. Emerson Quiet Kool Co. , No. 17-5358, 2018 WL 1169132, at *4 (D.N.J. Mar. 6, 
2018) (finding that the “Emerson” mark was “valid and legally protectable” through its trademark 
registration, and thus, that the pleadings sufficiently alleged that the domain name containing such 
mark was entitled to protection); Edison Motor Sales, LLC v. Dibre Auto Grp., LLC, No. 12-239, 
2012 WL 5199764, at *8 (D.N.J. Oct. 19, 2012) (finding that the plaintiff sufficiently pled that the 
“Nissan” mark was distinctive, and accordingly, that the domain name containing this mark was 
distinctive and entitled to protection). PageID:
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17 
 
(App. Div. 1980) (enjoining defendants from using the title “Burlington County Association for 
Children with Learning Disabilities,” because the name “Association for Children With Learning 
Disabilities,” had “nationwide recognition” a nd thus created confusion about defendant’s 
affiliation with the plaintiff). 
The Court previously denied Defendants’ moti on to dismiss Plaintiff’s corporate name 
claim, finding Plaintiff’s allegati ons sufficient to support a finding that the name of Defendants’ 
nonprofit corporation, “New Jersey Democratic Party A NJ Nonprofit Corporation” is confusingly 
similar to Plaintiff’s corporate name, “The Demo cratic Party of NJ, Inc., organized as the New 
Jersey Democratic State Committee.” 19 For the same reasons arti culated in its October 4, 2022 
Opinion, D.E. 29 at 18-19, which the Court adopt s and incorporate by re ference, Defendants’ 
motion to dismiss Count Six is denied.20 
IV. CONCLUSION 
Defendants’ motion to dismiss is GRANTED in part and DENIED in part. As to Counts 
One and Two, Defendants’ motion is GRANTED. As to Counts Three, Four, and Five, 
 
19 Defendants appears to acknowledge that the Cour t’s prior decision is th e law of the case, but 
suggest in their Reply that the Court revisit its decision, stating that “Defendants contend that the 
Court failed to fully appreciate the court precedent as to the Corporate Name Statute.” Def. Reply 
at 13 . This statement certainly doe s not establish that “extraordi nary circumstances” exist to 
warrant reconsideration. Nor do the arguments set forth in Defendants’ brief, which, apart from a 
few changed words and deleted sentences, appear to be copied and pasted from their prior motion 
to dismiss. Compare D.E. 20-1 at 38-39; D.E. 37-1 at 30-31. 
 
20 Defendants also seek attorneys’ fees under 15 U.S.C. § 1117(a). Def. Br. at 28-30. The Lanham 
Act permits the award of attorneys’ fees to the prevailing party in “exceptional cases.” 15 U.S.C. 
§ 1117(a). Because Defendants are not the “preva iling party” this request is premature. 
Additionally, the Court notes th at based on the arguments made in support of this request 
(pertaining to amending the complaint and requesting a discovery conference), this does not appear 
to be an “exceptional case.” See Acumed LLC v. Advanced Surgical Services, Inc., 561 F.3d 199, 
230 (3d Cir. 2009) (quoting Securacomm Consulting, Inc. v. Securacom Inc. , 224 F.3d 273, 280 
(3d Cir. 2000) (“Exceptional cases involve culpable conduct on the part of the losing part, such as 
bad faith, fraud, malice, or knowing infringement.”). PageID:
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18 
 
Defendants’ motion is GRANTED as to the “NJDEMS” mark and DENIED as to the “New Jersey 
Democratic Party” mark. Counts Two, Three, Four, and Five21 are dismissed without prejudice to 
allow Plaintiff an opportunity to file an amen ded pleading which cures the deficiencies noted 
herein.22 Plaintiff has thirty (30) days to file another amended complaint, and if it does not do so, 
the dismissal of such Counts will be with prejudice. De fendants’ motion is otherwise DENIED. 
An appropriate Order accompanies this opinion. 
Dated: June 7, 2023 
____________________________ 
John Michael Vazquez, U.S.D.J. 
 
21 To be clear, Counts Three, Four, and Five ar e only dismissed as to the “NJDEMS” mark—not 
the “New Jersey Democratic Party” mark. 
 
22 Count One is dismissed with prejudice because Plaintiff does not oppose dismissal. Plf. Opp. 
at 3 n.1. PageID:
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