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Alpha and Omega Financial Services, Inc. v. Kesler

United States District Court, D. Kansas

November 1, 2018

ALPHA AND OMEGA FINANCIAL SERVICES, INC., d/b/a LIVING WEALTH, Plaintiff,
v.
BRENT KESLER, SCOTT SCHLESENER, AND BRANDY BRIMHALL, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         The case comes before the court on plaintiff Living Wealth's Motion for Preliminary Injunction (Doc. 3) against defendants for alleged violations of the Copyright Act and Lanham Act. Defendants Scott Schlesener and Brandy Brimhall jointly submitted a Memorandum in Opposition. Doc. 51. Defendant Brent Kesler filed a Memorandum in Opposition separately. Doc. 47. Plaintiff then filed a Reply. Doc. 61.

         On September 17, 2018, the court conducted an evidentiary hearing on plaintiff's motion. At the hearing, each party had the opportunity to present evidence and cross-examine witnesses. Also, the parties stipulated to admit exhibits presented or discussed at the hearing. Doc. 80. Last, the court allowed the parties to submit post-hearing briefs. Docs. 76, 77, 78.

         Having considered the evidence presented, the briefs and arguments of counsel, and the governing law, the court denies plaintiff's motion for a preliminary injunction. The court finds that plaintiff has not carried its burden to show irreparable harm.

         I. Facts

         Plaintiff Living Wealth serves as a general agent for life insurance companies and earns commissions selling life insurance and other financial products to consumers. Defendants Brent Kesler, Brandy Brimhall, and Scott Schlesener are plaintiff's former sales agents. Mr. Schlesener and Ms. Brimhall left the company sometime between June 15-19, 2017; Mr. Kesler left the company on August 31, 2017.

         Plaintiff gives presentations to small and medium-sized groups in the company's target market, consisting of doctors, dentists, chiropractors, and multi-level marketing organizations. The parties dispute ownership of specific sales materials used for these presentations. Relevant here are the following: (1) the Infinite Banking for Beginners (“IBB”) PowerPoint sales presentation, which, plaintiff asserts, it created without “material” assistance from defendants, and (2) the Velocity of Money visual materials. Plaintiff also asserts it created the Velocity materials without any material assistance from defendants. Defendants Ms. Brimhall and Mr. Schlesener contend that they created the IBB PowerPoint. The IBB PowerPoint contains a slide developed from the Velocity of Money materials.

         Plaintiff applied for and received registration from the United States Copyright Office for the IBB PowerPoint and the Velocity of Money visual materials on March 1, 2018, and June 7, 2018, respectively.

         Plaintiff asserts that during the time it employed defendants, they had access to the IBB PowerPoint sales presentation. Plaintiff also claims that Mr. Kesler, after leaving the company, posted a sales presentation on YouTube, which is almost identical to plaintiff's IBB PowerPoint sales presentation. Mr. Kesler's presentation also includes a slide that, plaintiff contends, is nearly identical to plaintiff's Velocity of Money visual material.

         Mr. Kesler's presentation includes a photograph of David Pietsch, a multi-level marketing professional and one of plaintiff's prominent clients. The presentation indicates that Mr. Pietsch gave Mr. Kesler a favorable testimonial; but, plaintiff asserts that Mr. Pietsch never authorized Mr. Kesler to use his name or likeness. Instead, plaintiff alleges that Mr. Pietsch hasn't spoken to Mr. Kesler in more than three years. In response, Mr. Kesler states that he removed this testimonial from his presentation immediately after becoming aware of Mr. Pietsch's affidavit in this case.

         For Ms. Brimhall and Mr. Schlesener, plaintiff alleges that Ms. Brimhall accessed plaintiff's files, including a nearly identical, derivative version of the IBB PowerPoint from an online, cloud-based server without plaintiff's permission. Plaintiff also asserts that Ms. Brimhall changed the presentation to make it seem like Mr. Schlesener had prepared it for Wealth Kinetix, Ms. Brimhall's new firm. Ms. Brimhall also changed the title of the presentation-from “Infinite Banking for Beginners” to “Infinite Banking Basics”-but, otherwise, she did not change the presentation.

         Last, plaintiff allege that Mr. Kesler, in affiliation with Ms. Brimhall and Mr. Schlesener, started and continues to operate “The Money Multiplier” website. The site includes a “Member Success Stories” section, featuring a photograph and purported testimonial from Dr. Michael Strangherlin, another one of plaintiff's clients. Much like Mr. Pietsch, plaintiff alleges that Dr. Strangherlin is not defendants' client and that he never authorized defendants to reference him or use his words or likeness in marketing materials. Mr. Kesler claims that Dr. Strangherlin both provided the favorable testimonial and gave his permission to use it. But, Mr. Kesler states that he removed this testimonial immediately from his website after learning of Mr. Strangherlin's affidavit.

         Plaintiff seeks to enjoin defendants' use of its allegedly copyrighted materials under the Copyright Act and Lanham Act.

         II. ...


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