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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Asher Worldwide Enterprises LLC, d/b/a, )

Reliabuy.com, ) No. 12 C 568

)

Plaintiff, )

)

v. ) Judge Thomas M. Durkin

)

Housewaresonly.com Incorporated, )

Stuart N. Rubin, and )

Marcia Rubin, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Asher Worldwide Enterprises, LLC (“AWE”) brings this suit against 

Defendants Housewaresonly.com Incorporated (“Housewaresonly.com”), Stuart 

Rubin, and Marcia Rubin. The amended complaint sets forth a claim for relief 

against all three defendants for copyright infringement under 17 U.S.C. § 501 et. 

seq. (“Count I”), and violations of the Lanham Act, 15 U.S.C. § 1125(a)(1) (“Count 

II”). R. 35, Am. Compl. ¶¶ 26-31. The individual defendants Stuart and Marcia 

Rubin (“the Rubins”) move to dismiss Counts I and II against them. R. 57. For the 

following reasons, the Rubins’ motion to dismiss is denied. 

Background

The following relevant facts, drawn from AWE’s amended complaint, are 

accepted as true, and all reasonable inferences are drawn in its favor. See Tamayo 

v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Additionally, relevant facts 

drawn from AWE’s opposition brief to the Rubins’ motion to dismiss are considered 

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insofar as they are consistent with the amended complaint. See Geinosky v. City of 

Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (citing cases). AWE is a corporate 

business that sells discount commercial kitchen and restaurant equipment through 

a website called “Reliabuy.com.” R. 35 ¶¶ 1, 11, 12. Defendants Stuart and Marcia 

Rubin are the president and registered agent, respectively, of Housewaresonly.com 

and RestaurantKitchenWarehouse.com, businesses that make available for 

purchase various restaurant, kitchen, and other appliances through their websites 

and are direct competitors of AWE and its Reliabuy.com site. Id. at ¶¶ 14, 15, 17, 

19. According to AWE, the Rubins “direct and control” the operations of 

Housewaresonly.com and are the only people associated with the business. Id. at ¶

19; R. 65 at 4-5. 

While operating Reliabuy.com, AWE and others acting on its behalf created 

descriptions, product feature listings, and promotions to appear on the website and 

accompany the products listed for sale. R. 35 ¶ 13. AWE applied for copyright 

registration for those descriptions, feature listings, and promotions with the United 

States Copyright Office.1 Id. at ¶ 14. Between October 29, 2009 and January 27, 

2010, AWE published 65 original product listings with descriptions on 

Reliabuy.com. Id. at ¶ 23. And between March 17, 2010 and July 17, 2010, 47 of 

 1 AWE attached copies of these applications to its amended complaint. R. 35-2. See 

Geinosky, 675 F.3d at 745 n. 1 (in ruling on motion to dismiss, district court can 

consider complaint, documents attached to complaint, and documents critical to

complaint and referred to in it). 

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those 65 descriptions were published on the Housewaresonly.com’s website.2 Id. On 

August 11, 2010, AWE published 25 more descriptions on its website, and all of 

those descriptions were copied onto Housewaresonly.com’s website on September 

22, 2010. Id. In September and October of 2010, AWE further published 139 

additional descriptions, and by October 22, 2010, Housewaresonly.com copied and 

published 75 of those 139 descriptions on its website.3 Id. At no time did AWE give 

permission to the defendants to use the descriptions. Additionally, consumer 

Internet searches for “Reliabuy” display Housewaresonly.com pages and links. Id.

at ¶ 22.

In September 2010, AWE redesigned its website to focus on discount 

commercial restaurant equipment. Id. at ¶ 25. On September 22, 2010, shortly after 

AWE made this switch, Housewaresonly.com registered a new website called 

“RestaurantKitchenWarehouse.com” that focused on the same area of equipment. 

Id. That new website included over 200 product descriptions created, owned, and 

published by AWE. Id.

On July 15, 2011, AWE filed this federal action in the United States District 

Court for the Western District of Washington against Sur La Table, Inc., 

Housewaresonly.com, and RestaurantKitchenWarehouse.com, alleging, among 

 2 AWE attached over 20 instances of descriptions being duplicated on 

Housewaresonly.com’s website to its amended complaint. R. 35. 

3 In its amended complaint, AWE further alleges that “another” 1,000 product

listings were listed on AWE’s website from October 2008 to October 2009, and over 

150 of those descriptions were copied onto Housewaresonly.com’s website between 

March 17, 2010 and July 17, 2010. R. 35 ¶ 23. This allegation is confusing given 

AWE’s earlier statements.

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other things, copyright infringement and violations of the Lanham Act. R. 1. After 

AWE voluntarily dismissed defendant Sur La Table, Inc. from the lawsuit on July 

27, 2011, R. 4, the district court concluded that it did not have personal jurisdiction 

over the remaining defendants and accordingly, venue was not proper in the 

Western District of Washington, R. 14. On January 10, 2012, the case was

transferred to this district. Id. Upon receiving the case, on May 22, 2012, the Court 

referred the case to Magistrate Judge Valdez for settlement purposes. R. 24 (Dow, 

J.). AWE alleges that during this time, instead of engaging in settlement 

discussions, the Rubins were “winding up the affairs of Housewaresonly.com and 

moving themselves away from Chicago.” R. 65 at 3. AWE further alleges that the 

Rubins had in fact “abandoned their websites and appear[ed] to be depleting the 

assets, if any, of the websites in an attempt to avoid financial liability for the 

actions complained of in this case.” Id. In response to these actions, on September 

10, 2012, AWE moved to amend its complaint, seeking to add the Rubins personally 

as named defendants, R. 30, a request that this Court granted, R. 34 (Dow. J.). 

After the amended complaint was filed, AWE attempted to serve the Rubins 

but encountered difficulty. AWE alleges that it attempted to serve them at the 

address listed as Housewaresonly.com’s corporate headquarters, but discovered that 

the address was for a UPS facility in Wilmette, Illinois and no one at the facility 

had information regarding the Rubins’ whereabouts. R. 65 at 3-4. AWE served 

interrogatories asking for the Rubins’ current address. Counsel for the corporate 

defendants initially responded that the Rubins current address was “unknown”—

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the Rubins had apparently moved leaving no forwarding address—but later agreed 

to accept service of the complaint on their behalf. Id. at 4. Counsel for 

Housewaresonly.com then filed an appearance on the Rubins’ behalf. R. 47, 48. 

Legal Standard

The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of 

the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City 

of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to 

dismiss, the complaint must provide “a short and plain statement of the claim 

showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to 

provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007). The Seventh Circuit has explained that this 

rule “reflects a liberal notice pleading regime, which is intended to focus litigation 

on the merits of a claim rather than on technicalities that might keep plaintiffs out 

of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (internal quotation 

marks omitted). While “detailed factual allegations” are not required, “labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A 

claim has facial plausibility ‘when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 

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misconduct alleged.’” Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602 (7th Cir.

2009) (quoting Iqbal, 556 U.S. at 678).

Analysis

In their motion to dismiss, the Rubins challenge the sufficiency of the 

allegations in AWE’s amended complaint to hold them liable in their individual 

capacities. The Rubins argue that AWE’s allegations fall short of the “special 

showing” required to hold them personally liable for the infringement of the 

corporation. According to the Rubins, AWE’s statements in its amended complaint 

that they directed and controlled the operations of the corporation, as their alter 

egos, are conclusory and insufficient to survive a Rule 12(b)(6) motion to dismiss. R. 

57 at 4. 

Long ago, the Seventh Circuit discussed when corporate officers may be held 

personally liable for patent infringement by their corporation:

[I]n the absence of some special showing, the managing officers of a 

corporation are not liable for the infringements of such corporation, 

though committed under their general direction . . . . It is when the 

officer acts willfully and knowingly—that is, when he personally 

participates in the manufacture or sale of the infringing article (acts 

other than as an officer), or when he uses the corporation as an 

instrument to carry out his own willful and deliberate infringements, 

or when he knowingly uses an irresponsible corporation with the 

purpose of avoiding personal liability—that officers are held jointly 

with the company.

Dangler v. Imperial Mach., Co., 11 F.2d 945, 947 (7th Cir. 1926).4 Courts continue 

to apply this standard to personal liability for all types of corporate intellectual 

 4 Despite its age, Dangler remains the seminal case that establishes the standard 

for when corporate officers may be held personally liable for intellectual property 

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property infringement. See Peaceable Planet, Inc. v. Ty, Inc., 362 F.3d 986, 994 (7th 

Cir. 2004); FM Indus., Inc. v. Citicorp Credit Servs., Inc., No. 07 C 1794, 2007 WL 

4335264, at *4 (N.D. Ill. Dec. 5, 2007). Thus, for personal liability for corporate 

intellectual property infringement to extend to corporate officers, a special showing 

must be made that they acted willfully and knowingly and personally participated 

in the infringing activities or used the corporation to carry out their own deliberate 

infringement. Id.; see also FM Indus., 2007 WL 4335264, at *4. Merely being an 

officer in the corporation will not confer liability on an individual. DEV Indus., Inc. 

v. Rockwell Graphic Sys., Inc., No. 91 C 7197, 1992 WL 100908, at *3 (N.D. Ill. May 

4, 1992). When corporate officers are in control of the decisions of the corporation at 

all times, however, they may be liable for the intellectual property infringements of 

the corporation. Weller Mfg. Co. v. Wen Products, Inc., 231 F.2d 795, 801 (7th Cir. 

1956); see also Peaceable Planet, Inc. v. Ty, Inc., 362 F.3d 986, 994 (7th Cir. 2004); 

C.S.B. Commodities, Inc., v. Urban Trend (HK) Ltd., 626 F. Supp. 2d 837, 857-60 

(N.D. Ill. 2009). 

AWE contends that the following factual allegations in its amended 

complaint are sufficient to support its claims against the Rubins personally: (1) “Mr. 

and Ms. Rubin have, without the authorization or permission of AWE, copied and 

duplicated many of the descriptions”; (2) “Mr. Rubin and Ms. Rubin direct and 

 

infringement by their corporation. Although Dangler involved patent infringement, 

its standard has also been applied to trademark and copyright infringement. See 

Peaceable Planet, Inc. v. Ty, Inc., 362 F.3d 986, 994 (7th Cir. 2004); FM Indus., Inc. 

v. Citicorp Credit Servs., Inc., No. 07 C 1794, 2007 WL 4335264, at *4 (N.D. Ill. Dec. 

5, 2007). 

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control the operations of Defendants Housewaresonly.com, and 

RestaurantKitchenWarehouse.com”; and (3) “Defendant Housewaresonly.com is the 

alter ego[ ] of Defendants Mr. Rubin and Ms. Rubin and is under the direct control 

of Mr. Rubin and Ms. Rubin.” R. 35 ¶¶ 16, 19, 20. Whether these allegations alone 

are sufficient to reveal personal participation and direction and survive a 12(b)(6) 

motion is a close question. The Rubins’ argument that AWE’s allegations about 

them personally are conclusory is well-taken. The complaint, however, includes 

additional factual allegations that Stuart Rubin was the owner and president of the 

corporations, and Marcia Rubin was the registered agent for the corporations. Plus, 

the sheer number of infringements alleged, over 300,5 leads to the reasonable and 

credible inference that the Rubins acted willfully and knowingly when they 

duplicated the product descriptions.

Ultimately, the Court need not rely solely on the allegations in the amended 

complaint to resolve this dispute. AWE adds further elaboration to the factual 

allegations in its amended complaint in its brief opposing dismissal, which this 

Court may consider in deciding a Rule 12(b)(6) motion to dismiss provided they are 

“consistent with the pleadings.” Geinosky, 675 F.3d at 745 n.1 (citing cases). AWE 

reiterated in its brief that Stuart and Marcia Rubin are the only two individuals 

associated with the corporations. R. 65 at 4. AWE’s brief also points to the following 

 5 This number includes the 47 product descriptions uploaded onto the 

Housewaresonly.com website between March 17, 2010 and July 17, 2010; the 25 

descriptions uploaded on September 22, 2010; and the 75 descriptions uploaded on

October 22, 2010. R. 35 ¶ 23. This number also includes the over 200 product 

descriptions copied onto the RestaurantKitchenWarehouse.com website. Id. ¶ 25. 

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facts (and reasonable inferences from those facts) that AWE contends supports its 

claim that the Rubins were personally involved in the corporation’s infringements: 

(1) the structure of the corporations, which included only the Rubins as being 

associated with the them; (2) the Rubins’ listing of a UPS store facility as the 

corporate headquarters; (3) the Rubins’ suspicious attempts during the litigation to 

avoid service; and (4) the fact that the websites were abandoned, the assets 

withdrawn, and the corporation dissolved at the same time that the Rubins moved 

(to an unknown address) in an attempt to delay the federal case. Id. at 6. According 

to these allegations, the Rubins were not only the heads of the corporations, but 

they also comprised its entire workforce, which leads to the reasonable inference 

that they were personally involved in the corporation’s infringements. The timing of 

the corporations’ shutdown also lends further support to the claim that the 

corporation’s conduct was fully under the control of the Rubins. Essentially, given 

the structure of the corporations, it is reasonable to infer that the infringement 

actions of the corporations were committed by the Rubins because they are in fact 

“the corporation.” Moreover, the suspicious nature of the timing and attempts to 

avoid service in connection with the federal suit leads to the inference that the 

Rubins knowingly and willfully participated in the infringements and were shutting 

down the corporations to avoid personal liability. Ultimately, when all these facts 

are taken together, along with the sheer number of infringements alleged, the claim 

that the Rubins were personally involved in the infringements and that the 

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corporation was their alter ego, allowing them to conduct their own infringements 

and shield them from liability, is at least plausible.

After viewing the allegations in the amended complaint and AWE’s 

opposition brief in the light most favorable to AWE, the Court finds that AWE has 

made at this stage a “special showing” that the Rubins personally participated in 

the corporation’s infringement. It is at least plausible, taking all the allegations as 

true, that the Rubins “use[d] the corporation as an instrument to carry out [their] 

own willful and deliberate infringements” and “knowingly use[d] an irresponsible 

corporation with the purpose of avoiding personal liability.” Dangler, 11 F.2d at 947. 

Accordingly, AWE has sufficiently alleged a level of personal participation in the 

allegedly infringing activities to survive the Rubins’ 12(b)(6) motion.6 

 6

 It would be an inefficient use of the parties’ resources to grant the Rubins’ motion 

to dismiss without prejudice and allow AWE leave to amend its complaint again to 

include the additional allegations included in its opposition brief. As demonstrated 

above, the Court has already found the allegations in the complaint and the further 

elaborations in AWE’s opposition brief together are sufficient to survive the Rubins’ 

12(b)(6) motion to dismiss. AWE could therefore cure the defects in its complaint if 

it were granted leave to amend it. Through AWE’s opposition brief, the Rubins are 

on notice of the allegations against them and may proceed with discovery 

accordingly.

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Conclusion

For the foregoing reasons, the Rubins’ motion to dismiss Counts I and II in 

AWE’s amended complaint is denied.

ENTERED:

__________________________

Thomas M. Durkin

United States District Judge

Dated: August 26, 2013

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