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Dynamic Aviation Group, Inc. v. Dynamic International Airways, LLC

United States District Court, W.D. Virginia, Harrisonburg Division

March 24, 2016

DYNAMIC AVIATION GROUP INC., DA2, LLC, Plaintiffs,
v.
DYNAMIC INTERNATIONAL AIRWAYS, LLC Defendant.

MEMORANDUM OPINION

Michael F. Urbanski, United States District Judge

This matter is before the court on the renewed motion for preliminary injunction filed by plaintiffs Dynamic Aviation Group, Inc. and DA2, LLC (collectively "DAG"). ECF No. 45. DAG seeks an Order enforcing provisions of a Membership Interest Purchase Agreement dated October 9, 2014 and precluding the defendant Dynamic International Airways, LLC ("DIA") from infringing certain "DYNAMIC AVIATION" trademarks. The matter has been fully briefed, and the court held an evidentiary hearing on February 10-11, 2016. For the reasons stated below, the court finds that: (1) DAG is likely to succeed on the merits of some portion of its breach of contract and trademark infringement claims; (2) DAG is likely to suffer irreparable harm in the absence of a preliminary injunction; (3) the balance of the equities supports a preliminary injunction; and (4) a preliminary injunction is in the public interest. Accordingly, DAG's renewed motion for preliminary injunction is GRANTED in part and DENIED in part, and DIA is PRELIMINARILY ENJOINED from using the name "Dynamic Airways" and using the "DYNAMIC AIRWAYS" and "DYNAMIC" marks as specified below and in the accompanying Order.

I.

This is a trademark and breach of contract dispute between two aviation companies. Both DAG and DIA provide airline services in a variety of domestic and international markets. DAG has been in operation for nearly eighty years, and is currently managed by Michael Stoltzfus, Chief Executive Officer, and his father Karl Stoltzfus, Chairman of the Board. Am. Compl., ECF No. 26 at ¶ 9. Based in Bridgewater, Virginia, DAG offers a range of services to its customers, including airborne intelligence gathering, surveillance, data acquisition, fire management, insect sterilization, passenger charters, and medevac services. Id. at ¶¶ 4, 8. As of 2009, DAG had facilities in Virginia, California, Florida, and Panama. Id. at ¶ 15. DAG also operates passenger flights between New York and Boston through its partnership with Beacon, a third party aviation company. ECF No. 55, at 7; Pl. Ex. 35, ECF No. 56-35. It plans to expand those passenger operations in the near future. Zook Aff., ECF No. 46-1, at ¶ 3.

In contrast, DIA operates a commercial passenger and transport service based out of Greensboro, North Carolina. ECF No. 31, at ¶¶ 5, 27-28. DIA serves markets in the United States, Asia, and South America, including Orlando, Fort Lauderdale, Guyana, Palau, Hong Kong, and Brazil. Paul Kraus and Kenneth Woolley are alleged to be the current owners of DIA.

A. The Relevant Trademarks

DAG claims use of the name "Dynamic" for at least twenty years, and holds two registered trademarks for the mark "DYNAMIC AVIATION." Federal Trademark Registration ("FTR") No. 3316437 was registered on October 23, 2007 and is a standard character mark for the phrase:

Dynamic Aviation

Ex. A, ECF No. 26-1. Federal Trademark Registration No. 4532409 was registered on May 20, 2014 and is a mark with the phrase "Dynamic Aviation" placed next to a revolving globe as shown below:

(IMAGE OMITTED)

Ex. B, ECF No. 26-2. Color is not claimed as a feature of FTR No. 4532409, though DAG often displays this mark with the phrase "Dynamic Aviation" in red font, and the revolving globe as either white or blue:

(IMAGE OMITTED)

Donoian Aff., ECF No. 55-3, at 2; PL Ex. 34, ECF No. 56-34. DAG argues that these marks and the word "Dynamic" are now associated with its operations in the aviation industry. Am. Compl., ECF No. 26, at ¶¶ 11, 14. Moreover, DAG alleges it has spent several million dollars developing its "DYNAMIC AVIATION" brand, and claims to have acquired significant goodwill and public recognition for the quality of its services. Id.

For its part, DIA claims no registered trademarks. However, DIA uses the primary logo show below:

(IMAGE OMITTED)

See. e.g., PL Ex. 46, ECF No. 58-7, at 5-7. This "DYNAMIC" mark is used on DIA's airplanes, its main website www.airdynamic.com. and its advertising and marketing materials. See id.; Pl. Ex. 29, ECF No. 56-29; PL Ex. 31, ECF No. 56-31.

In addition to its "DYNAMIC" mark, DIA designed two similar marks. The first uses the company's full name, "Dynamic International Airways:

(IMAGE OMITTED)

Donoian Aff., ECF No. 55-3, at 2; PL Ex. 26, ECF No. 56-26. However, there is little evidence that DIA uses its "DYNAMIC INTERNATIONAL AIRWAYS" mark in commerce.

DIA's second similar mark uses the phrase "Dynamic Airways, " as shown below:

(IMAGE OMITTED)

Pl. Ex. 47, ECF No. 58-8. As with DIA's "DYNAMIC INTERNATIONAL AIRWAYS" mark, there is little evidence DIA uses the "DYNAMIC AIRWAYS" mark on its planes or in its marketing materials. However, the "DYNAMIC AIRWAYS" mark appeared on a second website operated by DIA, www.fly-dynamic.com. as recently as February 11, 2016. Id. The www.fly-dynamic.com website links to DIA's main www.airdynamic.com website. Id.

B. Sale of Dynamic Airways, LLC

The dispute between DAG and DIA arises out of the sale of Dynamic Airways, LLC in 2014. Dynamic Airways, LLC was formed in 2008 by Michael and Karl Stoltzfus as a passenger carrier service. Am. Compl., ECF No. 26, at ¶ 9. In 2010, Dynamic Airways, LLC acquired a "Part 121" certification from the Federal Aviation Administration ("FAA"), and began passenger flights using a fleet of McDonnell Douglas ("MD") 80 series and Boeing 767 aircraft. Id. at ¶¶ 16-17. These flights served several locations in the Eastern United States, as well as Brazil and Guyana. Id. Although Dynamic Airways, LLC operated the flights under the FAA certificate issued to it, the service was marketed to consumers under the "EasyJet" name. Two years later, the Stoltzfuses took steps to sell Dynamic Airways, LLC and its associated Part 121 certificate to Kraus and Woolley. Id. at ¶ 17.

Between approximately January 2013 and October 2014, the Stoltzfuses negotiated the sale of Dynamic Airways, LLC to Kraus and Woolley. Id. at ¶¶ 18-22. As part of this negotiation, the parties discussed whether the company would keep the name Dynamic Airways, LLC after the sale. Id. DAG claims it told Kraus and Woolley they could not use the name "Dynamic" in any form after they acquired the company. Kraus disagrees.[1] He concedes that he was required to change the company name from Dynamic Airways, LLC, but argues he could use other "Dynamic" names, including "Dynamic International Airways" or "Air Dynamic." The Stoltzfuses sold their interest in Dynamic Airways, LLC in two stages.

The first transaction took place in July 2013 when the Stolt2fuses transferred 80% of their interest in Dynamic Airways, LLC to Kraus and Woolley. Id. at ¶ 18. In relevant part, the 2013 Purchase Agreement stated:

Name: For a period of up to ninety days after the Closing (the "Name Change Date"), the name of the Company will remain Dynamic Airways LLC; provided, however, the Company shall conduct all business operations under a fictitious name effective immediately following the Closing Date. Buyers agree to change the name of the Company on or prior to the expiration of the Name Change Date.

Ex. C, ECF No. 55-8, at § 7.04. However, Kraus failed to change the name from Dynamic Airways, LLC as required by the July 2013 Purchase Agreement.

As a result, the parties began to dispute the name issue. Starting in January 2014, Kraus exchanged emails with Merle Zook, a senior executive at DAG, and other DAG executives. See. e.g., Pl. Ex. 6, ECF No. 56-6; Pl. Ex. 9, ECF No. 56-9; Pl. Ex. 10, ECF No. 56-10. In these emails, Kraus agreed that the 2013 Purchase Agreement required that he cease use of the name "Dynamic Airways, LLC." However, Kraus requested permission to use two related names-"Air Dynamic" or "Dynamic International Airways"-in order to avoid disruptions to DIA's passenger operations. Pl. Ex. 10, ECF No. 56-10. DAG' agreed to cooperate with the name change proposal, subject to written confirmation. PL Ex. 11, ECF No. 56-11. DAG sent Kraus a draft trademark license agreement on July 21, 2014. Kraus Aff, ECF No. 55-1, at ¶ 20. The licensing agreement allowed DIA to use the names "Air Dynamic" or "Dynamic International Airways" for 180 days, subject to an optional extension. PL Ex. 17, ECF No. 56-17. The parties discussed the terms of the license agreement for several weeks, but could not reach a final agreement. Pl. Ex. 18, ECF No. 56-18. The trademark license agreement was never signed.

During the same time period, the parties were negotiating the second stage of the sale of Dynamic Airways, LLC. Between approximately June 2014 and October 2014, the parties exchanged drafts of a Membership Interest Purchase Agreement ("MIPA") that would transfer the Stoltzfuses' remaining 20% interest in Dynamic Airways, LLC to Kraus and Woolley. See, e.g., PL Ex. 12, ECF No. 56-12; PL Ex. 19, ECF No. 56-19; PL Ex. 21, ECF No. 56-21. DAG employed a third party broker, Michael Wayshner, to help with the final negotiation. Kraus communicated primarily with Wayshner until a final agreement was reached in October 2014.

Various drafts of the MIPA addressed name usage, alternating between language allowing Kraus to use the names "Dynamic International Airways" and "Air Dynamic" and language forbidding use of these same names absent a separate licensing agreement. Compare Def. Ex. O, ECF No. 55-26, at ¶ 7 with Def. Ex. S, ECF No. 55-30, at ¶ 7; Def. Ex. T, ECF No. 55-31, at ¶ 7; PL Ex. 40, ECF No. 56-40, at ¶ 7. The final MIPA was, and stated:

7. Company Post-Closing Covenants: On or before October 9, 2014, the Company shall discontinue the use of (i) the name "Dynamic Airways" and (ii) any logo or trademark substantially similar to that mark used by Dynamic Aviation, Inc., or previously used by the Company while owned by the Seller or the Seller's Members.

Pl. Ex. C, ECF No. 26-3, at ¶ 7. Once again, Kraus failed to change the company's legal name from "Dynamic Airways." However, Kraus did file a certificate in Guilford County, North Carolina on October 7, 2014, noting DIA's intent to operate under the assumed name "Dynamic International Airways, LLC." Def. Ex. JJ, ECF No. 58-2.[2]

Several months later, on April 6, 2015, Kraus emailed Zook requesting access to the website www.dynamicairways. com. Pl. Ex. 23, ECF No. 56-23. Zook refused, and insisted that Kraus discontinue use of the name "Dynamic Airways." Pl. Ex. 24, ECF No. 56-24. The parties exchanged emails from April 2015 to June 2015 about the issue. Pl. Ex. 25, ECF No. 56-25; Pl. Ex. 26, ECF No. 56-26; Pl. Ex. 28, ECF No. 56-28. DAG then sent a "cease and desist" letter on June 5, 2015, to Kraus and Woolley, demanding they stop use of the name "Dynamic Airways" and avoid use of the word "Dynamic" in any form. Pl. Ex. 27, ECF No. 56-27.

On August 17, 2015, Kraus filed an amendment with the Virginia State Corporation Commission changing the company's legal name from "Dynamic Airways, LLC" to "Dynamic International Airways, LLC." ECF No. 31, at ¶ 27. Kraus later sought an order from the United States Department of Transportation ("DOT") reissuing various flight certificates to reflect this name change. Pl. Ex. 30, ECF No 56-30. However, Kraus refused to cease use of all "Dynamic" names, and the newly re-named DIA continued to use various "Dynamic" marks on its planes and in marketing materials, including the "DYNAMIC" mark described above.

C. The Current Suit

DAG filed its original complaint on August 28, 2015, alleging that DIA's use of the names "Dynamic Airways, " "Dynamic International Airways, " and "Dynamic" infringed on DAG's registered trademarks for "DYNAMIC AVIATION." ECF No. 1. DAG filed a motion for a preliminary injunction that same day, and the court held an evidentiary hearing on September 22, 2015. During the hearing, DAG offered evidence of poor service and financial mismanagement at DIA that threatened DAG's reputation in the aviation industry. For its part, DIA claimed that the. MIPA signed in 2014 did not forbid use of the names "Dynamic International Airways, " "Air Dynamic, " or "Dynamic." Because of factual disputes raised during the hearing, the court denied DAG's motion for preliminary injunction and ordered a sixty day discovery period to explore the prior contractual negotiations between DAG and DIA. ECF No. 20. DAG filed an amended complaint on November 13, 2015, alleging six counts:

• Count 1: Trademark infringement in violation of 15 U.S.C. § 1114 (infringing marks "Dynamic Airways, " "Dynamic International Airways, " and "Dynamic").
• Count 2: False designation of origin in violation of 15 U.S.C. § 1125(a).
• Count 3: Dilution of DAG's "DYNAMIC" marks.
• Count 4: Common law trademark infringement and unfair competition.
• Count 5: Breach of paragraph 7 of the MIPA signed on October 9, 2014.
• Count 6: Injunctive relief forbidding future use of any "DYNAMIC" marks, including "DYNAMIC AVIATION, " "DYNAMIC AIRWAYS, " "DYNAMIC INTERNATIONAL AIRWAYS, " "AIR DYNAMIC, " and "DYNAMIC."

ECF No. 26, at 13-18. Notably, DAG's amended complaint added a claim for breach of contract that did not appear in its original complaint.

On January 20, 2015, DAG filed a renewed motion for a preliminary injunction, seeking to enjoin DIA's use of die "DYNAMIC" marks and die word "Dynamic" in any form. ECF No. 45. In support, DAG cited additional evidence of consumer confusion and safety concerns with DIA's passenger operations. This evidence included news reports showing mat a DIA-branded airplane caught fire in Fort Lauderdale, Florida on October 29, 2015. The court held a second evidentiary hearing on February 10-11, 2016, and heard testimony from Michael Stoltzfus, Zook, Wayshner, and Kraus. The parties also submitted extrinsic evidence about die negotiations preceding the signing of the MIPA. The matter is now ripe for disposition.

II.

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); Real Truth About Obama. Inc. v. Fed. Election Comm'n, 575 F.3d 342, 345 (4th Cir. 2009), vacated on other grounds. 130 S.Ct. 2371 (2010), reinstated in relevant part. 607 F.3d 355 (4th Cir. 2010). It is a remedy that is '"granted only sparingly and in limited circumstances.'" MicroStrategy. Inc. v. Motorola. Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quoting Direx Israel. Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir. 1991) (internal quotation marks omitted)). The Court in Winter explained that in each case, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987). "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982); see also Railroad Comm'n of Tex, v. Pullman Co., 312 U.S. 496, 500 (1941).

Therefore, under Winter, "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." 555 U.S. at 20; see also Real Truth About Obama. 575 F.3d at 347 (noting that, post-Winter. a plaintiff must make a "clear showing" that he is likely to succeed on the merits and is likely to be irreparably harmed absent preliminary relief). A preliminary injunction cannot be issued unless all four of these elements are met. Winter. 555 U.S. at 20; see also League of Women Voters of N. Carolina v. N. Carolina, 769 F.3d 224, 236 (4th Cir. 2014), cert, denied. 135 S.Ct. 1735 (2015).[3]

III.

DAG brings multiple claims, including trademark infringement, false designation of origin, dilution of DAG's "DYNAMIC" marks, common law trademark infringement and unfair competition, and breach of contract. However, "[i]n general, where multiple causes of action are alleged, a plaintiff need only show likelihood of success on one claim to justify injunctive relief." W. Indus.-N., LLC v. Lessard, No. 1:12-CV-177, 2012 WL 966028, at *2 (E.D. Va. Mar. 21, 2012) (citing McNeil-PPC v. Granutec, Inc., 919 F.Supp. 198, 201 (E.D. N.C. 1995)). In its current motion, DAG focuses on two claims-breach of contract and trademark infringement-and argues that it is entitled to an injunction on both counts. Because DAG's claim for breach of contract is interrelated with its claim for trademark infringement, the court turns first to the contract claim.

A. Likelihood of Success on Claim for Breach of Contract

A plaintiff seeking a preliminary injunction must show that it is likely to succeed on the merits. To state a claim for breach of contract in Virginia, DAG must prove: "(1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant's violation or breach of that obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation." Filak v. George, 267 Va. 612, 619, 594 S.E.2d 610, 614 (2004).[4] The first element is undisputed in this case, as both DAG and DIA agree they are bound by the terms of the MIPA. The only dispute is whether DIA's use of the names "Dynamic Airways, " "Dynamic International Airways, " "Air Dynamic, " and "Dynamic" violates paragraph 7 of the MIPA.

The court turns first to the plain language of the contract. See Flippo v. CSC Associates III. L.L.C., 262 Va. 48, 64, 547 S.E.2d 216, 226 (2001) ("The polestar for the construction of a contract is the intention of the contracting parties as expressed by them in the words they have used") (emphasis in original) (internal citation omitted). In relevant part, the MIPA states:

7. Company Post-Closing Covenants: On or before October 9, 2014, the Company shall discontinue the use of (i) the name "Dynamic Airways" and (ii) any logo or trademark substantially similar to that mark used by Dynamic Aviation, Inc., or previously used by the Company while owned by the Seller or the Seller's Members.

Pl. Ex. C, ECF No. 26-3, at ¶ 7. DAG argues that this paragraph is unambiguous, and forbids DIA from using names such as "Dynamic Airways, " "Dynamic International Airways, " "Air Dynamic, " or "Dynamic." DIA disagrees, claiming that the MIPA is ambiguous. Specifically, DIA believes that the phrase "substantially similar" as used in subparagraph 7(ii) can have multiple meanings, and must be interpreted with reference to the pre-contract communications between DAG and DIA. DIA believes this extrinsic evidence shows that DAG approved DIA's use of the name "Dynamic International Airways" and "Air Dynamic."

1. Breach of Subparagraph 7(i)

As to subparagraph 7(i), the court agrees that the MIPA is clear and unambiguous-DIA was required to cease use of the name "Dynamic Airways" on or before October 9, 2014. Golding v. Floyd, 261 Va. 190, 192, 539 S.E.2d 735, 736 (2001) ("[W]hen the terms of a contract are clear and unambiguous, a court is required to construe the terms according to their plain meaning."). DAG offers undisputed evidence that DIA continues to use the name "Dynamic Airways." For example, DIA owns and operates the website www.fly-dynamic.com. which links to DIA's main website www.airdynamic.com. As recently as February 11, 2016, the www.fly-dynamic.com website displayed a logo with the name "Dynamic Airways." PL Ex. 47, ECF No. 58-8. Further, the meta data for DIA's main website www.airdynamic.com appears to contain remnants of the name "Dynamic Airways, " since an internet search for www.airdynamic.com labels the website as "Dynamic Airways." ECF No. 4-1, at 38.[5] Moreover, DIA recently applied to the United States Department of Transportation to reissue various interstate and foreign charter certificates under die name "Dynamic International Airways, LLC." Def. Ex. II, ECF No. 58-1. As part of that application, DIA requested registration of the trade name "Dynamic Airways" so that DIA could use that name for an "interim period" while it transitioned to its new corporate name. Id. at 4. The DOT approved DIA's request on February 4, 2016 and authorized DIA's use of "Dynamic Airways" as a trade name. PL Ex. 30, ECF No 56-30, at 2.

DIA does not contest these facts. Indeed, Kraus admitted that the MIPA forbids use of "Dynamic Airways, " and that DIA was still using that name. Therefore, the court finds that DAG has made a clear showing that DIA is in breach of subparagraph 7(i) of the MIPA.

2. Breach of Subparagraph 7(ii)

The dispute over subparagraph 7(ii) is a closer question. DAG claims subparagraph 7(ii) is also unambiguous, and "unequivocally" bars die use of "Dynamic International Airways, " "Air Dynamic, " or "Dynamic" because diese names are substantially similar to "Dynamic Airways" and "Dynamic Aviation." ECF No. 46, at 11-12. Because DAG finds the language unambiguous, it argues that no extrinsic evidence should be admitted. The court disagrees.

Whether a contract term is ambiguous is a question of law for the court. Commonwealth Group-Winchester Partners, L.P. v. Winchester Warehousing. Inc., 332 F.App'x 913, 919 (4th Cir. 2009) (citing Musselman v. Glass Works. L.L.C., 260 Va. 342, 346, 533 S.E.2d 919, 921 (2000)). "An ambiguity exists when language is of doubtful import, admits of being understood in more than one way, admits of two or more meanings, or refers to two or more things at the same time." Allen v. Green, 229 Va. 588, 592, 331 S.E.2d 472, 475 (1985). Moreover, any ambiguity must "appear on the face of the instrument." Frederick County Sanitation Auth. v. Q-N Minerals (Chemstone) Co., No. 5:11-CV-006, 2012 WL 5308036, at *4 (W.D. Va. Oct. 26, 2012) (citing Salzi v. Va. Farm Bureau Mut. Ins. Co., 263 Va. 52, 55, 556 S.E.2d 758, 760 (2002)). "Parol evidence cannot be used to first create an ambiguity and then remove it." Cohan v. Thurston. 223 Va. 523, 525, 292 S.E.2d 45, 46 (1982). Nor is a document "ambiguous merely because the parties disagree as to the meaning of the language employed by them in expressing their agreement." Amos v. Coffey, 228 Va. 88, 92, 320 S.E.2d 335, 337 (1984) (internal quotation marks omitted). Yet, where a contract "can reasonably have more than one meaning given its context. . .[w]here two constructions are equally possible, or reasonable [persons] . . . may reach reasonable, but opposite, conclusions based on a contract's language" the contract is ambiguous. SunTrust Mortg., Inc. v. AIG United Guar. Corp., 784 F.Supp.2d 585, 592 (E.D. Va. 2011) (internal citations and quotation marks omitted). If an ambiguity exists, a court may admit extrinsic evidence "not to contradict or vary contract terms, but to establish the real contract between the parties." Tuomala v. Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996).[6] Finally, "[t]he construction of an ambiguous contract is a matter submitted to the trier of fact, who must examine the extrinsic evidence to determine the intention of the parties." Id.

At the outset, the court notes that subparagraph 7(ii) is not a model of clarity. The section states that DIA must discontinue use of "any logo or trademark substantially similar to that mark used by Dynamic Aviation, Inc., or previously used by the Company while owned by the Seller or the Seller's Members." Pl. Ex. C, ECF No. 26-3, at ¶ 7. The MIPA defines "Company" as "Dynamic Airways, LLC, " the "Seller" as "DA2, LLC, " and the "Seller's Members" as "Michael A. Stoltzfus and Karl D. Stoltzfus." Id. at 1. Further, the phrase "that mark" in subparagraph 7(ii) appears to refer to the name "Dynamic Airways" as it appears in subparagraph 7(i).[7] After adding these definitions, the court is faced with the following language: "(DIA] shall discontinue the use of . . . any logo or trademark substantially similar to [Dynamic Airways] used by Dynamic Aviation, Inc., or previously used by [Dynamic Airways, LLC] while owned by [DA2, LLC] or [Michael A. Stoltzfus and Karl D. Stoltzfus].

The key phrases are "substantially similar, " "used by" and "previously used by"-the first clause of subparagraph 7(ii) appears to target any logo or trademark substantially similar to "Dynamic Airways" used by DAG, while the second clause addresses any logo or trademark previously used by Dynamic Airways, LLC during the time it was owned by Michael and Karl Stoltzfus. However, the MIPA does not define the phrase "substantially similar, " and ...


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