John Ketner’s image he claimed was used by a motorcycle parts company.
ST. LOUIS — A federal judge in Missouri dismissed an artist’s claims against motorcycle parts company Cioni Inc., ruling that his complaint did not plausibly allege the company had access to his copyrighted flaming skull designs and that his Lanham Act claims concerned copyright, not trademark.
The court dismissed John Ketner’s federal claims with prejudice and his remaining state-law claims without prejudice.
U.S. District Judge Joshua M. Divine issued the order Oct. 15 in the Eastern District of Missouri. The ruling granted Cioni’s motion to dismiss the claims, which arose from Ketner’s allegation that the company used a flaming skull design similar to artwork he had created and sold.
Ketner, a professional artist, alleged that he created several sculptural flaming skull designs and held an active, valid copyright registration for his work.
He said Cioni used a similar design on its motorcycle products without his permission. The court noted that Ketner did not allege he had a registered federal trademark for the design.
The court said a copyright infringement claim requires allegations supporting three elements: ownership of the copyright, the defendant’s access to the copyrighted work and substantial similarity between the works.
It concluded that Ketner had not plausibly alleged access. His statement that the work was widely available lacked supporting factual detail, the judge wrote, and his allegation that he spent considerable time and money promoting the design did not establish a reasonable possibility that Cioni had seen it.
The order said Ketner offered no specific facts about the design’s dissemination that would support an inference Cioni encountered it.
A cease-and-desist letter sent to the company could not establish earlier access, the court said, because it was sent after Cioni was already using the challenged design.
The court also rejected Ketner’s argument that the designs’ substantial similarity could establish access. It explained that, when access is inferred from similarity, the standard is “striking similarity,” a higher bar than substantial similarity.
The works must be nearly identical enough to preclude the possibility of independent creation, the judge wrote.
The court found that Ketner had not plausibly alleged that level of similarity. It cited differences described by Cioni, including the proportions of the skulls, the length and arrangement of the flames, the shape of the eye and nose sockets, the teeth and the designs’ finishes and colors.
Cioni’s design was described as flatter, wider and rendered in black and silver, while Ketner’s was taller, more three-dimensional and polished chrome.
The order said Ketner did not specifically refute those differences in his response.
The court separately dismissed the claims Ketner brought under the Lanham Act, which include allegations of unfair competition, false designation of origin and false advertising.
The judge said the law addresses confusion about who produced goods, not who originated the ideas or content embodied in them.
Ketner alleged that he created the designs but did not allege confusion about the producer of Cioni’s products, the order said.
The ruling also found that Ketner had not pleaded facts sufficient to show his flaming skull design had acquired “secondary meaning” that would identify his services in the public mind.
The court said his allegations did not provide details about advertising featuring the design, consumer surveys or recognition, sales efforts connecting the design to him, unsolicited media coverage or plagiarism beyond the alleged conduct at issue in the lawsuit.
Ketner’s complaint also included state-law claims, among them common-law unfair competition, unjust enrichment and conspiracy.
After dismissing the federal claims, the court declined to exercise supplemental jurisdiction over those remaining claims, citing the usual practice of leaving state-law issues to state courts when federal claims are eliminated before trial.
The order dismissed the Copyright Act and Lanham Act claims with prejudice. It dismissed the remaining state-law claims without prejudice.
U.S. District Court for the Eastern District of Missouri case number: 4:26-cv-00386
