United States District Court, D. Kansas
ALPHA AND OMEGA FINANCIAL SERVICES, INC., d/b/a LIVING WEALTH, Plaintiff,
BRENT KESLER, SCOTT SCHLESENER, AND BRANDY BRIMHALL, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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.
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.
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
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.
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.
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,
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.
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
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.
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.
seeks to enjoin defendants' use of its allegedly
copyrighted materials under the Copyright Act and Lanham Act.