INTERRA INTERNATIONAL, LLC, Plaintiff, v. MOHAMMED AL KHAFAJI and INTERVISION, LLC, Defendants CIVIL ACTION FILE NO. 1:16-CV-1523-MHC United States District Court, N.D. Georgia, Atlanta Division Filed March 21, 2019 Counsel Heidi E. Siegmund, Igor Babichenko, Claire Hagan Eller, McGuire Woods, LLP, Richmond, VA, Lucy Jewett Wheatley, McGuire Woods LLP, Tysons Corner, VA, Peter Norbert Farley, McGuire Woods LLP, Atlanta, GA, for Plaintiff. James W. Hawkins, Ichter Davis LLC, Atlanta, GA, for Defendant Mohammed Al Khafaji. Anthony Adrian Onorato, Pro Hac Vice, FisherBroyles LLP, Rockville Centre, GA, Michael Thomas Cone, FisherBroyles, LLP, New York, NY, Vincent C. Bushnell, FisherBroyles, LLP, Atlanta, GA, for Defendant Intervision, LLC. Cohen, Mark H., United States District Judge ORDER *1 This case comes before the Court on Plaintiff Interra International, LLC's Motion for Partial Summary Judgment [Doc. 90]; Defendant Intervision, LLC's Motion for Summary Judgment [Doc. 113]; Defendant Mohammed Al Khafaji's Motion for Summary Judgment [Doc. 128]; Defendant Mohammed Al Khafaji's Motion for Rule 37(c)(1) Sanctions [Doc. 141] (“Mot. for Sanctions”); and Defendant Intervision, LLC's Motion to Strike, or in the Alternative, Notice of Objection to the Declarations of William Green and Stephen Isaf [Doc. 203] (“Mot. to Strike”). I. FACTUAL BACKGROUND[1] A. Interra International, LLC Interra International, LLC (“Interra”) is in the business of selling and exporting animal proteins to customers around the world. Defs.' Resp. to Interra's SMF ¶ 1. One of Interra's customers was a company called Al Majar Al Kapyr (“Al Majar”), located in Amman, Jordan. Id. ¶ 20. Interra and Al Majar entered into an agreement in November 2014 under which Al Majar agreed to purchase from Interra ten bulk container loads of frozen chicken product each month from November 2014 until May 2015. Id. ¶ 36; Agreement [Doc. 72-2] (“Al Majar Agreement”).[2] The Al Majar Agreement contemplated that forty-five days prior to its expiration in May 2015, the parties would discuss the possibility of extending the contract for an additional year. Al Majar Agreement. Pursuant to the Al Majar Agreement, Interra sold chicken valued in the millions of dollars to Al Majar in at least thirteen separate shipments from August 2014 through March 2015. See Invoices [Doc. 90-6], attached as Ex. B to the Decl. of William J. Green III dated May 21, 2018 [Doc. 90-4]; Defs.' Resp. to Interra's SMF ¶¶ 41, 94. *2 To fulfill the orders for chicken products from Al Majar, Interra contracted with Koch Foods, Inc. (“Koch”), a company that grows, slaughters, and supplies chicken. Defs.' Resp. to Interra's SMF ¶¶ 3, 18, 55, 58; Dep. Tr. of Peter Gress taken Oct. 19, 2017 [Doc. 94-1] (“Gress Dep.”) at 52. As it relates to the Al Majar Agreement, Interra and Al Majar agreed that Koch would be the sole supplier of chicken products to Interra for sale to Al Majar. Defs.' Resp. to Interra's SMF ¶ 29. Koch provided Interra the chicken product for shipment to Al Majar, but Koch had no relationship with Al Majar. Defs.' Resp. to Interra's SMF ¶ 58; Gress Dep. at 15, 22. At some point in January 2015, Al Sudani contacted Interra to inform it that Al Majar was going cancel the Al Majar Agreement. Dep. Tr. of William Green, III, taken Nov. 16, 2017 [Doc. 93-1] (“Green Dep.”) at 86-87; Decl. of William Green III dated June 11, 2018 [Doc. 173] (“Green Decl.”) ¶ 9. Al Majar did not purchase any chicken products from Interra after February 6, 2015. Defs.' Resp. to Interra's SMF ¶ 113. B. Jannat Markings A “Jannat” product design was printed on the lids of the bulk containers in which the frozen chicken Interra sold to Al Majar was shipped. Defs.' Resp. to Interra's SMF ¶¶ 69-70, 74; Green Dep. at 41. Interra sold chicken products using this Jannat brand to Al Majar only. See Green Dep. at 68. The Jannat design on the bulk containers consisted of: (1) a drawing of a building that appears to be a mosque with a minaret,[3] (2) the word “Jannat” prominently placed below the drawing, (3) the phrase “small leg quarters,” (4) the phrase “slaughtered according to Islamic rites” written in Arabic and Farsi, (5) the “Halal” designation, and (6) an endorsement from an Iraqi Shia cleric. See image attached as Ex. 3 to the Compl. [Doc. 72-3]; image attached as Ex. A to Intervision's Answer and Countercl. to Pl.'s Compl. [Doc. 73-1]. Koch was the entity responsible for placing the Jannat product design on the bulk containers. Defs.' Resp. to Interra's SMF ¶ 71; Gress Dep. at 41-46. “Jannat” is Arabic for “paradise.” Al Khafaji Decl. ¶ 11. The idea to use the name “Jannat” was thought of by Sudani. See Dep. Tr. of Anwar Al Sudani dated Nov. 29, 2017 [Doc. 98-1] (“Sudani Dep.”) at 50; Draft Agreement, attached as Ex. 7 to the Green Dep. [Doc. 114-7 at 70]. Defendant Mohammed Al Khafaji (“Al Khafaji”), an Interra employee at the time, is the individual who found the image to use for the Jannat Logo after searching for images of mosques on the internet. Dep. Tr. of Mohammed Al Khafaji taken Dec. 15, 2017 [Doc. 124-1] (“Al Khafaji Dep.”) at 103; Green Dep. at 147-48; Sudani Dep. at 54-57. The bulk shipping containers also had shipping labels affixed to them by Koch which were slightly different from those printed on the lids of the shipping containers. See Peter Gress Dep. Tr. taken Oct. 19, 2017 [Doc. 94-1] (“Gress Dep.”) at 46. While the design is the same (a picture along with the wording described above), the label included additional detailed information about the product being shipped, such as the language indicating that the product was “[m]anufactured for: Interra International, Inc.”[4] Id. The Jannat Shipping Labels included (1) the Jannat Logo, (2) the word “Jannat” next to the Jannat Logo, (3) the phrase “small leg quarters,” (4) the phrase “slaughtered according to Islamic rites” written in Arabic, and (4) the “Halal” designation. Decl. of Stephen T. Isaf dated June 3, 2016 [Doc. 13-2] ¶ 14; Jannat Shipping Label; Defs.' Resp. to Interra's SMF ¶¶ 68, 78. C. Mohammed Al Khafaji *3 From approximately December 12, 2011, until February 6, 2015, Al Khafaji worked for Interra as a relationship manager, where he was required to build and maintain relationships with Interra's current and prospective customers. Defs.' Resp. to Interra's SMF ¶¶ 11, 12, 107, 112. One of the customers Al Khafaji serviced while employed by Interra was Al Majar. Defs.' Resp. to Interra's SMF ¶ 20. Al Khafaji subsequently went to work for Intervision, LLC (“Intervision”) on February 23, 2015, where he currently works to create export sales for the company's food products, including the sale of frozen proteins to customers in the Middle East. Defs.' Resp. to Interra's SMF ¶¶ 115, 117. D. Employment Agreement As a condition of his employment with Interra, Al Khafaji entered into an employment agreement, setting forth the terms and conditions of his employment. Defs.' Resp. to Interra's SMF ¶¶ 13, 15-16; Agreement [Doc. 72-1] (“Employment Agreement”). Pursuant to the Employment Agreement, Al Khafaji agreed to hold Interra's confidential information and trade secrets in strict confidence and not to disclose or use any such proprietary information for any purpose other than in connection with his employment with Interra or in any manner against Interra's interests. Employment Agreement ¶ 4.1. He also agreed to assign and transfer to Interra any and all rights to all “Inventions and Work Made for Hire” he made, generated, or conceived during his employment with Interra. Id. ¶ 4.4; Defs.' Resp. to Interra's SMF ¶ 17. The Agreement also contained, in pertinent part, the following non-solicitation provisions: During the time that [Al Khafaji] is employed by Interra and ... for the specified period of time of two (2) years following the termination of such employment for any reason whatsoever (whether voluntary or involuntary) [Al Khafaji] will not: (a) solicit or attempt to solicit sales or purchase orders for Core Products: (i) from any Customer or Vendor with respect to whom [Al Khafaji] bought or sold Core Products on behalf of Interra at any time during the two (2) years immediately preceding [Al Khafaji's] termination, or (ii) from any Customer or Vendor account that [Al Khafaji] serviced or supervised other's servicing at any time during the twelve (12) month period immediately preceding the termination of [Al Khafaji's] employment with Interra, or (iii) from any prospective Customer or Vendor during the two (2) year period immediately preceding [Al Khafaji's] termination. (b) induce or influence or attempt to induce or influence any Customer or Vendor to divert sales or purchase orders for or related to Core Products away from Interra .... Employment Agreement ¶ 5.1. E. Intervision's Sale of Chicken to Al Majar Intervision confirmed its first sales order of chicken under the Jannat brand to Al Majar in March 2015, resulting in a sale in May 2015. Defs.' Resp. to Interra's SMF ¶ 127; Decl. of Hector Rainey dated June 14, 2016 [Doc. 22-2] (“Rainey Decl.”) ¶ 4; Second Am. and Suppl. Objs. and Resp. to First Interrogs. [Doc. 90-10] at 19-20. In order to supply chicken to Al Majar, Intervision contracted with Koch in the same way that Interra did under the Al Majar Agreement. Defs.' Resp. to Interra's SMF ¶ 126; Rainey Decl. ¶ 7. Just as it did for the Al Majar Agreement, Koch packaged the chicken product that Intervision sold to Al Majar. Rainey Decl. ¶ 7; Intervision's Second Am. and Suppl. Objs. and Resp. to First Interrogs. [Doc. 90-10] at 19-20. Koch packaged for shipment the chicken that Intervision sold to Al Majar and the chicken Interra sold to Al Majar in the same way, including the Jannat Logo and Jannat Shipping Label. Defs.' Resp. to Interra's SMF ¶¶ 128-31; Gress Dep. at 67-68. *4 Intervision was aware that the Jannat Logo was printed on the bulk crate lids used by Koch to ship Intervision's chicken to Al Majar. Gress Dep. at 45-46. Koch relied on Intervision's representation that Al Sudani owned the rights to the design used on the bulk crate lids. Id. at 47-48. Koch maintains that it unilaterally decided to use the Jannat Shipping Labels on the containers of Intervision's chicken sold to Al Majar. Id. at 48, 90. Koch contends that it used the Jannat Shipping Labels, even though they had the “manufactured for Interra” language, because Koch did not want to waste the extra shipping labels leftover from when Koch was working with Interra. Id. at 48-49. In a position that is consistent with Koch, Intervision maintains, until September 14, 2015, that it was unaware that its chicken was being shipped to Al Majar using Jannat Shipping Labels which included the “[m]anufactured for: Interra International, Inc.” language. Rainey Deel. ¶¶ 8, 12. Shortly thereafter, Intervision endeavored to correct the shipping labels so that they reflected that the products were “[m]anufactured for: Intervision Foods.” Id. ¶¶ 9-11, 13-14. Based on the foregoing, Interra's Fourth Amended Complaint (the operative complaint in this case) includes claims for the following: false designation of origin and unfair competition under 15 U.S.C. § 1125(a) (2012) against both Defendants (Count I); breach of contract against Al Khafaji (Count II); tortious interference with contract and business relations against Intervision (Count III); violation of the Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq. (2015), against both Defendants (Count IV); common law unfair competition against both Defendants (Count V); and fraud against both Defendants (Count VI). Fourth Am. Compl. [Doc. 72]. II. PRELIMINARY EVIDENTIARY MATTERS A. Motion to Strike Intervision moves to strike portions of the declarations of William J. Green III [Doc. 173] and Stephen T. Isaf [Doc. 171], which Interra submitted in support of its opposition to Defendants' motions for summary judgment. Mot. to Strike. Intervision argues that the declarations should be stricken because the statements therein (1) are conclusory without support from the evidence, argumentative, irrelevant, opinion, legal conclusions, and/or hearsay, (2) violate this Court's Local Rules, or its Standing Order by asserting new “evidence” that Interra did not disclose in discovery, and (3) directly contradict the declarants' previous testimony from their 30(b)(6) depositions. Id. at 2. Under the Federal Rules, a court may strike “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” from “a pleading.” FED. R. CIV. P. 12(f). Intervision's request is improperly characterized as a motion to strike because such motions may be made only regarding pleadings. A declaration submitted with a response brief is not a pleading within the meaning of Rule 12(f) as defined by Rule 7(a). See FED. R. CIV. P. 7(a); see also Circle Grp., L.L.C. v. Se. Carpenters Reg'l Council, 836 F. Supp. 2d 1327, 1347, 1349 (N.D. Ga. 2011) (stating that Rule 12(f) “applies to pleadings, not to motions or briefs filed in support of motions” nor to declarations filed in support of motions). Consequently, Intervision's Motion to Strike is DENIED. Nevertheless, the Court has considered Intervision's objections that the declarations should not be considered in connection with the parties' pending motions for summary judgment. See, Exceptional Mktg. Grp., Inc. v. Jones, 749 F. Supp. 2d 1352, 1358-59 (N.D. Ga. 2010) (“The Court will consider the motion as an objection to consideration of the declaration.”). Because the Court is able to rule on the pending motions for summary judgment without relying on any objectionable portions of the two declarations, Intervision's objections are moot. B. Motion for Sanctions Al Khafaji moves for sanctions pursuant to Rule 37(c)(1) in the form of a Court order precluding Interra from asserting any claim for damages against Al Khafaji that is not set forth in Interra's Second Amended Initial Disclosures served on February 12, 2018. Under Federal Rule of Civil Procedure 37(c)(1), if “a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). *5 Specifically, Al Khafaji seeks to preclude Interra from asserting that it is entitled to $8,410,991.00 in damages based on Al Khafaji's alleged breaches of his Employment Agreement. See Interra's Fourth Am. Resp. to Khafaji's Interrog. No. 12 [Doc. 141-11] ¶ 3; Interra's Fourth Am. Initial Disclosures [Doc. 141-12] at 14-15.[5] Al Khafaji argues that on May 10, 2018, months after the close of fact discovery (February 19, 2018) and expert discovery (April 19, 2018), Interra amended its interrogatory responses and initial disclosures to add an entirely new claim for breach of contract damages against Al Khafaji. Mem. of Law in Supp of Al Kahafaji's Mot. for Sanctions [Doc. 141-1] (“Sanctions Br.”) at 1-3. Al Khafaji also contends that Interra violated Rule 26(e) when it failed to supplement its initial disclosures and interrogatory responses in a timely manner to reflect that it is seeking lost profits as an element of its damages in this case. Mot. for Sanctions at 16-21. Specifically, Al Khafaji contends that when Interra served its Third Amended Responses to Al Khafaji's Interrogatories [Doc. 141-6] and Second Amended Initial Disclosures [Doc. 141-7] on February 12, 2018, and when Interra served its Third Amended Initial Disclosures [Doc. 141-8] on February 19, 2018, the portions of those responses detailing Interra's computation of damages omitted language from previous discovery responses which indicated that Interra was seeking breach of contract lost profits as an element of its damages.[6] Al Khafaji argues that omitting this language in the February discovery responses constitutes a withdrawal of Interra's intent to seek lost profit breach of contract damages against him. Al Khafaji contends he has been prejudiced because he has not been able to (1) cross-examine Interra's Rule 30(b)(6) designee about the claim, (2) cross-examine Interra's damages expert about the claim, and (3) engage a damages expert to address the claim. Sanctions Br. at 2. The Court does not find merit in Al Khafaji's argument. 1. Interra Consistently Asserted its Intent to Seek Lost Profit Damages. First, there is no indication that Interra ever intended to withdraw or withdrew any measure of damages against Al Khafaji, including any lost profits associated with its breach of contract claim against him. The Fourth Amended Complaint alleges that Al Khafaji breached the Employment Agreement and that he has suffered damages as a consequence “in an amount to be proven at trial.” Fourth Am. Compl. ¶¶ 118-37. The Prayer for Relief clearly indicates that Interra is seeking, inter alia, “lost profits, in an amount to be proven at trial.” Id. at 38-39. Interra has not amended or withdrawn these claims. Al Khafaji admits that Interra's discovery responses prior to February 2018 clearly state that it was “pursuing a lost profits theory of breach of contract damages against Al Khafaji.” Sanctions Br. at 4-5. Consistent with the prior discovery responses, the February discovery responses indicate that Interra “seeks all damages sustained by Interra as a result of ... Khafaji's breach of contract.” The February discovery responses then provide a computation of those damages, “noting that expert disclosures have not yet been made and that these computations are subject to revision by Interra's expert.” See, e.g., Second Am. Initial Disclosures. Those computations state: “Subject to revision by Interra's expert, Interra seeks $108,500 from Defendant Khafaji for his wrongful breaches of his Interra employment agreement,” but do not include the $8,410,991.00 figure that was later included in the May discovery responses. See e.g., Interra's Fourth Am. Initial Disclosures at 14-15 (“Interra seeks $8,410,991 from Defendant Khafaji for his wrongful breaches of his Interra employment agreement. Alternatively, if it is determined that shipping freight costs must be further deducted from Interra's lost profits (which Interra contends is not required), then Interra's lost profits would be at least $4,579,816. Interra additionally seeks $108,500 in the salary bonuses that Khafaji was paid while at Intervision.”). *6 Interra provided an additional discovery response on February 26, 2018, which states that Interra maintained the position that it was harmed by Al Khafaji's breach of contract, including the lost sales, and that “[t]he calculations of Interra's damages due to lost sales will be available in Interra's expert report, which will be disclosed by the deadline agreed upon by the parties.” Interra's Resp. to Khafaji's Second Interrogs. [Doc. 157-2] at 14.[7] The February 26 discovery response and the other February discovery responses consistently maintained Interra's position that it was seeking lost profits as a measure of its damages for breach of contract against Al Khafaji and put him on notice that the exact measure would be provided by Interra's expert. On February 26, 2018, Interra served its expert's report which states that “the damages recoverable against Khafaji for breach of a restrictive covenant are lost profits as well as the loss of customers, the loss of employees, and the decreased value of the business property.” Expert Report of Scott D. Hampton [Doc. 145-2] ¶ 40. The Report also states “[b]ased on the monetary remedy assumptions previously cited and the financial analysis demonstrated above, Interra's lost profit is $8,410,991.” Id. ¶ 64; see also id. ¶60 (“The amount of incremental profit that compensates Interra for Intervision's and Mr. Khafaji's wrongful acts is $8,410,991 of Intervision sales to Interra's protected customers (See Exhibit F.2) for the damage period February 7, 2015 through February 6, 2017, and $737,966 relating to the sale of Jannat-labeled chicken product (See Exhibit E.2) for the period May 4, 2015 through this Report date.”). The expert report reiterates that Interra was seeking lost profit damages against Khafaji for his breach of contract. Al Khafaji's claim that “Hampton expressed no opinion about this claim in his report” is mistaken. See Sanctions Br. at 14. 2. Al Khafaji Was Not Prejudiced. Al Khafaji claims he was prejudiced because he was unable to cross-examine Interra's Rule 30(b)(6) designee or Interra's expert about Interra's claim that it was seeking damages for lost profits related to Al Khafaji's breach of contract. Sanctions Br. at 2. Specifically, Al Khafaji claims that his counsel asked no questions of Interra's Rule 30(b)(6) designee “regarding sales lost due to Khafaji's solicitation of other Interra customers because it was clear that Interra had withdrawn that claim.” Sanctions Br. at 13-14 (internal quotation omitted). This is false. Al Khafaji's counsel specifically asked Interra's representative about lost profits calculations at the 30(b)(6) deposition. Dep. Tr. of Stephen Isaf dated Feb. 14, 2018 [Doc. 157-3] at 16-18. The fact that Al Khafaji's counsel elected not to question Interra's expert about the lost profit damage calculation in his report and elected not to engage an expert of his own is a trial strategy that cannot be attributed to Interra. Throughout this litigation, Interra consistently has alleged that it is seeking lost profit damages against Al Khafaji related to his alleged breach of contract. Interra also has consistently represented that the exact measure of that damage calculation would be provided by its expert, and it was timely provided on February 26, 2018. The supplemental May discovery responses are consistent with and reflective of Interra's expert report served months earlier. As it relates to Al Khafaji's Motion for Sanctions, the Court does not find that Interra's discovery responses violated Rule 26. Accordingly, Al Khafaji's Motion for Sanctions is DENIED. III. LEGAL STANDARD Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A party seeking summary judgment has the burden of informing the district court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions,” and cannot be made by the district court in considering whether to grant summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). *7 If a movant meets its burden, the party opposing summary judgment must present evidence demonstrating a genuine issue of material fact or that the movant is not entitled to judgment as a matter of law. Celotex, 477 U.S. at 324. In determining whether a genuine issue of material fact exists, the evidence is viewed in the light most favorable to the party opposing summary judgment, “and all justifiable inferences are to be drawn” in favor of that opposing party. Anderson, 477 U.S. at 255; see also Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). A fact is “material” only if it can affect the outcome of the lawsuit under the governing legal principles. Anderson, 477 U.S. at 248. A factual dispute is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Id. “If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But summary judgment for the moving party is proper “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,”. Matsushita, 475 U.S. at 587 (citation omitted). IV. ANALYSIS - MOTIONS FOR SUMMARY JUDGMENT The parties have filed cross motions for summary judgment. Interra contends it is entitled to judgment as a matter of law on Counts I, IV, V and VI as well as Intervision's Counterclaim against it. Interra's Mem. in Supp. of its Mot. for Summ. J. [Doc. 90-1] (“Interra's MPSJ”). Al Khafaji contends he is entitled to judgment as a matter of law on all of the claims asserted against him (Counts I, II, IV, V and VI). Mem. of Law in Supp. of Al Khafaji's Mot. for Summ. J. [Doc. 137-2] (“Al Khafaji's MSJ”). Intervision contends it is entitled to judgment as a matter of law on all of the claims asserted against it (Counts I, III, IV, V and VI). Intervision's Mem. of Law in Supp. of Mot. for Summ. J. [Doc. 114-2] (“Intervision's MSJ”). A. Federal False Designation of Origin and Unfair Competition Under 15 U.S.C. § 1125(a) (Count I) Count I of Interra's Fourth Amended Complaint alleges false designation of origin and unfair competition pursuant to Section 43 of the Lanham Act, codified as 15 U.S.C. § 1125. Fourth Am. Compl. ¶¶ 113-17. This statute “forbids unfair trade practices involving infringement of trade dress, service marks or trademarks, even in the absence of federal trademark registration.” Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 (11th Cir. 2001) (citation omitted). To prevail on a claim under 15 U.S.C. § 1125(a), a plaintiff must show: (1) the plaintiff had enforceable trademark rights in the mark and (2) the defendant adopted a mark that was the same or confusingly similar “such that consumers were likely to confuse the two.” Id. (citing Lone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 106 F.3d 355, 358 (11th Cir. 1997)); see also Crystal Entm't & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1320 (11th Cir. 2011). 1. Use in Commerce It is undisputed that Interra did not register any Jannat markings, so to the extent Interra has any rights to those marks, it is through common law where trademark ownership rights are “appropriated only through actual prior use in commerce.” Tally-Ho, Inc. v. Coast Cmty. Coll. Dist., 889 F.2d 1018, 1022 (11th Cir. 1989) (citations omitted). “Trademark ownership is always appurtenant to commercial activity. Thus, actual and continuous use is required to acquire and retain a protectible interest in a mark.” Id. at 1022-23 (footnote omitted). “Use in commerce” is defined as: [T]he bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark.... [A] mark shall be deemed to be in use in commerce ... on goods when (A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and (B) the goods are sold or transported in commerce. *8 15 U.S.C. § 1127; accord Planetary Motion, 261 F.3d at 1193-94. “Commerce” under the Lanham Act is defined as “all commerce which may lawfully be regulated by Congress.” N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1218 n.5 (11th Cir. 2008) (citing 15 U.S.C. § 1127). “The term ‘used in commerce’ in the Lanham Act refers to a sale or transportation of goods bearing the mark in or having the effect on: (1) United States interstate commerce; (2) United States commerce with foreign nations; or (3) United States commerce with the Indian Tribes.” Person's Co. v. Christman, 900 F.2d 1565, 1568 (11th Cir. 1990) (footnote omitted); see also Int'l Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Estrangers a Monaco, 329 F.3d 359, 363-64 (4th Cir. 2003) (citing U.S. CONST. art. 1, § 8, cl. 3) (holding that “commerce” under the Lanham Act “necessarily includes all the explicitly identified variants of interstate commerce, foreign trade, and Indian commerce.”). The undisputed evidence demonstrates that the chicken products Interra sold to Al Majar starting in May of 2014 were packaged in bulk containers with the Jannat Logo printed on them and that the Jannat Logo was also on the Jannat Shipping Labels which were affixed to those containers. Interra contends that this establishes Interra's common law trademark rights in the Jannat Logo. Interra's MPSJ at 12-14. Intervision argues that Interra's commercial activities were insufficient to create enforceable trademark rights in the Jannat Logo. Intervision's Mem. of Law Resp. to Interra's MPSJ [Doc. 162] (“Intervision Opp'n Br.”) at 5-11. Specifically, Intervision contends that Interra's use of the Jannat Logo in conjunction with the sale of chicken products to Al Majar outside the United States was not “sufficiently public” to consumers in the United States to cause ownership of the mark in the United States. Id. at 5. Intervision stresses the point that in order to constitute “open” or “public” use under the Lanham Act, the use of a trademark must be made relevant to the class of purchasers and then inserts its own requirement that the class of purchasers must be in the United States: With respect to Interra's establishment vel non of goodwill in the U.S. market, the evidentiary record proves incontrovertibly that Interra neither sold Jannat chicken to anyone in the U.S.[,] nor advertised Jannat chicken in the U.S. Consumers in the U.S. never saw the product because it was shipped by Koch directly to the port. Interra itself never handled the Jannat chicken in the U.S. Intervision Opp'n Br. at 6-7 (citation omitted). This is a variation of the same argument that Intervision has twice presented to this Court and this Court has twice rejected. See Order dated July 15, 2016 [Doc. 34] at 19-20; Order dated March 21, 2017 [Doc. 58] (“March 21 Order”) at 10-14. As this Court indicated in its previous order, “[t]he exclusive right to a trademark belongs to one who first uses it in connection with specified goods. Such use need not have gained wide public recognition, and even a single use in trade may sustain trademark rights if followed by continuous commercial utilization.” Blue Bell, Inc. v. Farah Mfg. Co., Inc., 508 F.2d 1260, 1265 (5th Cir. 1975) (citations omitted); March 21 Order at 11.[8] Despite asserting this argument three times, Intervision has failed to explain why “use in commerce” necessarily means commerce within the United States and Intervision has cited no case that stands for this proposition. See March 21 Order at 11-12 (“[Intervision's] argument requires the assumption that the relevant class of purchasers encompasses only consumers in the United States and that, because Interra's purchasing consumers were in the Middle East, Interra fails to satisfy the public use test.”). *9 None of the cases Intervision relies upon, many of which were previously analyzed by this Court, support Intervision's position that the class of purchasers to whom the use of a trademark must be made relevant have to be located in the United States. See, e.g., Progressive Emu Inc. v. Nutrition & Fitness, Inc., 655 F. App'x 785, 799 (11th Cir. 2016) (involving only the “sale” of goods by the plaintiff to the defendant pursuant to a contract, and no distribution to the public); Gen. Healthcare Ltd. v. Qashat, 364 F.3d 332, 337 (1st Cir. 2004) (involving an intra-corporate sale of a component of a finished product); Blue Bell, 508 F.2d at 1265-66 (holding that mere “internal” use was not sufficiently open to constitute a valid “use in commerce”); Harod v. Sage Prods., Inc., 188 F. Supp. 2d 1369, 1377 (S.D. Ga. 2002) (holding that a company that “receives goods as part of the manufacturing process is not among the relevant class of consumers” to constitute a use in commerce). To the contrary, courts that have considered the issue have found that sale of products accompanied by use of a mark outside of the United States can constitute “use in commerce” sufficient to find protectable trademark rights. See e.g., Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 330 (5th Cir. 2008) (finding that an American company's sale of a product under a trademark to customers in Saudi Arabia constituted use under the Lanham Act); Int'l Bancorp, 329 F.3d at 364, 370 (holding that “commerce” under the Lanham Act “necessarily includes all the explicitly identified variants of interstate commerce, foreign trade, and Indian commerce” and “use” existed where the foreign defendant “used the mark in its foreign trade, formally, and at great cost.”); Am. Rice, Inc. v. Ark. Rice Growers Co-op. Ass'n, 701 F.2d 408, 413-15 (5th Cir. 1983) (citations and quotations omitted) (“[A] United States district court has jurisdiction to award relief to an American corporation against acts of trademark infringement and unfair competition consummated in a foreign country by a citizen and resident of the United States’ ” and there is “no requirement that the defendant's products bearing the infringing marks make their way back into the United States”); Grand River Enters. Six Nations Ltd. v. VMR Products LLC, No. 13-CV-104-WMC, 2014 WL 2434517, at *8 (W.D. Wis. May 29, 2014) (“[Plaintiff's] sale of Couture cigarettes to importers caused the cigarettes to move in regulable commerce; ... that means [Plaintiff] has used the [ ] mark “in commerce” even though its own activities take place in Canada.”). The undisputed evidence demonstrates that Interra sold chicken products to Al Majar that were shipped in bulk containers with the Jannat Logo printed on the lid. There were at least thirteen separate shipments of chicken to Al Majar from August 2014 through March 2015. Each of the shipments had the Jannat Logo on the lid of the bulk container as well as the Jannat Shipping Label which also included the Jannat Logo. The Court finds this constitutes “use in commerce” under 15 U.S.C. § 1127 and was sufficiently “open” or “public” use of the Jannat Logo to the relevant class of purchasers in this case which includes, at the least, Al Majar. 2. Likelihood of Confusion Trademarks are protected against infringement by use of identical or colorable imitations of the mark which are confusingly similar “such that consumers were likely to confuse the two.” Planetary Motion, 261 F.3d at 1193. The Eleventh Circuit uses a seven-factor test to determine likelihood of confusion: (1) strength of the mark alleged to have been infringed; (2) similarity of the infringed and infringing marks; (3) similarity between the goods and services offered under the two marks; (4) similarity of the actual sales methods used by the holders of the marks, such as their sales outlets and customer base; (5) similarity of advertising methods; (6) intent of the alleged infringer to misappropriate the proprietor's good will; and (7) the existence and extent of actual confusion in the consuming public. *10 Tana v. Dantanna's, 611 F.3d 767, 774-75 (11th Cir. 2010).[9] “In this Circuit, we are required to consider each of the seven factors.” Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1361 (11th Cir. 2007). Although the “likelihood of confusion is a question of fact, it may be decided as a matter of law” and the Eleventh Circuit routinely weighs the likelihood-of-confusion factors on summary judgment. Tana, 611 F.3d at 775 (citation and quotation omitted). a. Strength of Mark “The strength and distinctiveness of plaintiff's mark is a vital consideration in determining the scope of protection it should be accorded. Strong marks are widely protected, as contrasted to weak marks.” John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 973 (11th Cir. 1983) (internal punctuation and citation omitted). Interra contends that the Jannat Logo is suggestive as opposed to descriptive, arguing that the Jannat Logo has images associated with Islam, but the image “in no way describes the chicken products being sold.” Interra's MPSJ at 15-16. Intervision disagrees, arguing that there is a colorable argument that the Jannat Logo functions to describe food harvested in accordance with religious edicts. Intervision Opp'n Br. at 20-21. The import of the parties' competing characterizations of the Jannat Logo is described by the Eleventh Circuit as follows: A consideration in determining the strength of a trademark is whether the mark is “arbitrary” or “fanciful,” “suggestive,” or merely “descriptive.” An arbitrary or fanciful mark has no inherent relationship to the product or service with which it is associated. A suggestive mark suggests some characteristic of the product or service to which it is applied, but requires the consumer to use his imagination to determine the nature of the product or service. A descriptive mark describes a characteristic or quality of the product or service, such as its intended use, its ingredients, its dimensions, its desirable features, or its end effect on the consumer. A purely fanciful or arbitrary mark is generally considered strong and is given protection over a wide range of related products and variations in appearance of the mark. A descriptive mark, on the other hand, is considered weak and is given a narrow range of protection. A suggestive mark falls somewhere between the two preceding types of marks and, although a suggestive mark can be protected without evidence that it has acquired secondary meaning, is comparatively weak. *11 John H. Harland Co., 711 F.2d at 974. As it is defined in in this case, the Jannat Logo simply consists of the image of the Masjid-e-Nabvi Mosque. Defs.' Resp. to Interra's SMF ¶ 50 (“The Jannat Logo contains images of Masjid-e-Nabvi, which is a mosque located in Medina, Saudi Arabia, that is considered by Muslims as the second holiest site in Islam.”).[10] The Court also notes that the Jannat Logo as it appeared on bulk shipping containers and on the Jannat Shipping Labels was always accompanied by (1) the phrase “leg quarters,” indicating the product associated with the mark was a chicken product, (2) the phrase “slaughtered according to Islamic rules,” and (3) the Halal designation, indicating that the chicken product was slaughtered according to Islamic rules. See Jannat Logo; Jannat Shipping Label. The fact that these elements always accompanied the Jannat Logo give it a more descriptive quality. The Court finds that the Jannat Logo mark is slightly suggestive as there is nothing descriptive about the actual image of the mosque, but the wording consistently accompanying the Jannat Logo is purely descriptive in nature. Given the mixed nature of the mark, the Court finds this factor is neutral. b. Similarity of Marks “When analyzing the similarity of the mark, the court must consider the overall impression created by the marks, including a comparison of the appearance, sound and meaning of the marks, as well as the manner in which they are displayed.” Caliber Auto. Liquidators, Inc. v. Premier Chrysler, Jeep, Dodge, LLC, 605 F.3d 931, 939 (11th Cir. 2010) (quotation and citation omitted). Because it is undisputed that the marks at issue are identical, the Court finds this factor weighs in favor of Interra and a finding of there being a likelihood of confusion. c. Similarity of Products “This factor requires a determination as to whether the products are the kind that the public attributes to a single source, not whether or not the purchasing public can readily distinguish between the products of the respective parties.” Frehling Enters. v. Int'l Select Group, Inc., 192 F.3d 1330, 1338 (11th Cir. 1999). The test “is whether the goods are so related in the minds of consumers that they get the sense that a single producer is likely to put out both goods.” Id. at 1338. Here, it is undisputed that Interra and Intervision sold identical products under the Jannat Logo. The undisputed evidence also indicates that the only consumer of the products sold associated with Jannat Logo was Al Majar and it was aware that it was buying goods from Intervision, not Interra, which would indicate that there was no actual confusion. See Sudani Dep. at 167-70. Although the products were identical, because Intervision sold the product to the same entity who was aware Intervision was using the Jannat mark, the Court finds that, at best, this factor is neutral. d. Similarity of Sales Methods *12 The similarity of the parties' sales methods “takes into consideration where, how, and to whom the parties' products are sold.” Caliber, 605 F.3d at 940. It is undisputed that both Interra and Intervision purchased chicken products from Koch and arranged for shipment to Al Majar in identical fashion. It is also undisputed that once Intervision sold chicken to Al Majar, it was not only aware that the chicken was sourced from Koch, but that Al Majar requested that it be sourced from Koch. Sudani Dep. at 84-85. Accordingly, although the sales method was the same, the Court find that this factor is neutral since the only entity receiving the product was not confused. e. Similarity of Advertising Methods “The greater the similarity in advertising campaigns the greater the likelihood of confusion.” Ross Bicycles, Inc. v. Cycles USA, Inc., 765 F.2d 1502, 1508 (11th Cir. 1985). Interra has presented evidence that products under the Jannat brand were “offered” to then-existing Interra customers in the Middle East by sending the Jannat Logo to them and suggesting that they could use the Jannat Logo to develop their own brand in their locality, but there is no evidence that either party advertised any products associated with the Jannat Logo or used the Jannat Logo in any advertising. See Green Dep. at 69-74 (indicating that Interra did no advertising using any Jannat mark); Defs.' Resp. to Interra's SMF ¶ 156 (indicating that Intervision has done no advertising with the Jannat Logo); Intervision's Second Am. and Suppl. Objs. and Resp. to First Interrogs. [Doc. 90-10] at 29-30 (“Intervision has not advertised using the logo asserted by Plaintiff.”). Because there is no evidence of any advertising using the Jannat Logo in this case, this factor weighs in favor of Intervision. f. Intent of Alleged Infringing Party If a defendant adopts a plaintiff's mark with the intent of obtaining benefit from the plaintiff's reputation, “that fact alone may be sufficient to justify the inference that there is confusing similarity.” John H. Harland Co., 711 F.2d at 977 (internal punctuation and citations omitted). “When analyzing an alleged infringer's intent, we must determine whether the defendant adopted a plaintiff's mark with the intention of deriving a benefit from the plaintiff's business reputation.” Caliber, 605 F.3d at 940 (quotation and citation omitted). Interra argues that “[b]ad faith in the adoption and use of a trademark normally involves the imitation of packaging material, use of identical code numbers, adopting of similar distribution methods or other efforts by a party to ‘pass off’ its product as that of another.” Interra's MPSJ at 17 (quoting Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252, 263 (5th Cir. 1980)). Interra contends that Intervision's bad faith can be inferred from: (1) Intervision's use of identical Jannat Logo on shipping containers, (2) Intervision's use of identical Jannat Shipping Labels, and (3) Al Khafaji's actions leading up to Intervision's first shipments of chicken to Al Majar (e-mailing himself a version of the Jannat Logo on December 3, 2014, while still employed by Interra, and later while employed by Intervision telling Koch that Al Sudani owned the Jannat Logo). Id. at 17-21. The Court disagrees. The undisputed evidence is that Al Majar bought chicken from Interra under the Jannat label and that Al Majar was involved with the creation of the Jannat mark. It is not reasonable to draw the inference that Intervision intended to deceive Al Majar using the Jannat mark given the facts of this case. Although the evidence presented by Interra demonstrates that Intervision used the Jannat Logo and Jannat Shipping Label, the evidence fails to show any intent on the part of Intervision to derive any benefit from reputation Interra garnered from Interra's previous use of the Jannat mark. Instead the undisputed evidence demonstrates that there was only one customer who was familiar with the Jannat brand. This single customer was intimately familiar with the Jannat brand as Al Majar helped develop it and claims ownership in it. Sudani Dep. at 13-16. As it was the case in the Amstar Corp. case, “[t]here is no evidence the name was adopted with any intent to confuse, mislead, or deceive the public.” Amstar Corp., 615 F.2d at 263. This factor weighs in favor of Intervision and against a finding of there being a likelihood of confusion. g. Actual Confusion *13 “The last factor, actual confusion in the consuming public, is the most persuasive evidence in assessing likelihood of confusion.” Tana, 611 F.3d at 779. Interra has presented evidence of a single instance of confusion in the form of an e-mail inquiry Ahmed Tama General Trading Co. (“Ahmed Tama”), a company located in the United Arab Emirates, which is in the business of importing frozen food products and distributing them to countries in the Middle East, especially to Iraq. Interra's MPSJ at 20; Defs.' Resp. to Interra's SMF ¶¶ 158-62; E-mail from a company assistant to Robin Tommalieh, Sales Manager (Dec. 10, 2015 [Doc. 90-35] (“Ahmed Tama E-mail”). It is undisputed that Ahmed Tama was not interested in buying the Jannat chicken, but in locating a supplier of chicken products, presumably non-Jannat products, so that it could set up its own separate private label which would compete with the Jannat brand. See Dep. of Robin Tommalieh taken Dec. 1, 2017 [Doc. 99-1] (“Tommalieh Dep.”) at 220 (indicating that Ahmed Tama was inquiring about a chicken supplier for its own private label program); Ahmed Tama E-mail. This is evidence of an entity inquiring about setting up a business that competes with the Jannat brand, not evidence of actual confusion in the marketplace of a consumer or potential consumer of the chicken products sold under the Jannat mark. Having found no evidence to support actual consumer confusion, the Court finds that this factor weighs in favor of Intervision and against a finding of there being a likelihood of confusion. h. Overall Balance of Factors The Court now considers the “overall balance” of the seven factors. Custom Mfg. & Eng'g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 649 (11th Cir. 2007). “To award summary judgment in a case where these factors are required to be weighed, the Court must consider the evidence in a light most favorable to the non-moving party and must conclude that no reasonable jury could reach a contrary result.” ITT Corp. v. Xylem Group, LLC, 963 F. Supp. 2d 1309, 1319 (N.D. Ga. 2013) (citation omitted). Considering the evidence in the light most favorable to Interra, the Court finds that three factors are neutral, one factor weighs in Interra's favor, and three factors weigh heavily against a finding of confusion, including two significant factors of intent and actual confusion. The undisputed evidence is that both Interra and Intervision sold the exact same product to the same customer, Al Majar, and there is no evidence that the Jannat mark was used in any advertising or sold to anyone else other than this customer. The undisputed evidence also demonstrates that Al Majar was intimately involved with the creation of the Jannat mark and even contends that it owns the mark. Given the evidence presented this case, Al Majar could not have been confused by Interra's subsequent use of the Jannat mark. In addition to the evidence demonstrating that the Jannat mark was not used outside of sales to Al Majar, there is no evidence of Intervision's intent to misappropriate any good will associated with the Jannat mark and no evidence of actual confusion. The Court finds that no reasonable jury could reach a contrary result. Therefore, the Court concludes as a matter of law that there is no likelihood of confusion.[11] Because Interra is unable to establish one of the elements of its claim for false designation of origin and unfair competition pursuant to Section 43 of the Lanham Act as a matter of law, Interra's Motion for Summary Judgment on that claim (Count I) is DENIED. Intervision's and Al Khafaji's Motions for Summary Judgment as they relate to Count I are GRANTED. B. Related State Law Claims (Counts IV-VI) Both parties agree that Counts IV (Georgia Deceptive Trade Practices Act, O.C.G.A. § 10-1-370 et seq.), V (common law unfair competition), and VI (fraud pursuant to O.C.G.A. § 23-2-55) succeed to the same extent as Count I. Interra's MPSJ at 20; Intervision Opp'n Br. at 23-24. See Amstar Corp., 615 F.2d at 258-59 (holding that the test for deceptive trade practices and unfair competition under Georgia law is the same as the test under the Lanham Act); Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833, 839 n.14 (11th Cir. 1983) (noting that Amstar “appear[ed] to support the district court's ruling” that claims alleging deceptive trade practices and unfair competition under Georgia law involve the same dispositive question as claims under the federal Lanham Act). *14 Because the Court finds that Interra's claim in Count I fails as a matter of law, it also finds that Interra's claims in Counts IV, V, and VI fail as a matter of law. Accordingly, Interra's Motion for Summary Judgment as it relates to Counts IV, V, and VI is DENIED and Intervision's and Al Khafaji's Motions for Summary Judgment as they relate to Counts IV, V, and VI are GRANTED. C. Breach of Contract (Count II) Count II of Interra's Complaint alleges that Al Khafaji violated Section 4 of the Employment Agreement by, inter alia, divulging and using Interra's proprietary information. Fourth Am. Compl. ¶ 129. The same count alleges that Al Khafaji violated Section 5 of the Employment Agreement by, inter alia: (1) soliciting Interra's customers; (2) selling frozen chicken product under the Jannat brand to Al Majar on behalf of Intervision; (3) inducing or attempting to induce Interra's customers to divert sales or purchase orders for or related to core products away from Interra; (4) soliciting sales or purchase orders for “Core Products” from Interra's “Vendors,” including Koch Foods; and (5) diverting Interra sales and payments from customers to himself while employed by Interra. Fourth Am. Compl. ¶¶ 131-35. “The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” Kuritzky v. Emory Univ., 294 Ga. App. 370, 371 (2008) (citations omitted); LNV Corp. v. Branch Banking & Tr. Co., 723 F. App'x 653, 656 (11th Cir. 2018) (citations omitted). Al Khafaji does not contest there is a valid contract, but contends that he is entitled to summary judgment because no evidence he actually used any of Interrra's proprietary information, no evidence he solicited any customer in violation of his Employment Agreement, and there is no evidence of any damage caused by any alleged breach of the Employment Agreement. Al Khafaji's MSJ at 5-20. 1. Alleged Violations of the Employment Agreement Al Khafaji states that “[w]ith reference to Section 4 of the Employment Agreement, at no time since February 6, 2015 have I used Interra's Proprietary Information to secure a sale of any products or to help me in my job at Intervision.” Decl. of Mohammed Al Khafaji dated May 21, 2018 [Doc. 128-13] (“Al Khafaji Decl.”) ¶ 7. In response, Interra has presented evidence that on January 22, 2015, Al Khafaji e-mailed himself a spreadsheet containing the contact information from his cell phone, which included contact information for the customers he worked with on behalf of Interra. Defs.' Resp. to Interra's Statement of Additional Material Facts in Supp. of Interra's Opp'n to Al Khafaji's MSJ [Doc. 212-1] (“Defs.' Resp. to Interra's Add'l SMF”) ¶¶ 151-53; Al Khafaji Dep. at 292-97; E-mail from Al Khafaji to Al Khafaji (Jan. 22, 2015) [Doc. 177-14]. Interra also has presented a substantial amount of evidence which indicates that after Al Khafaji left Interra, he called and e-mailed many of the Interra customers he serviced while at Interra. Defs.' Resp. to Interra's Add'l SMF ¶¶ 214, 228-29; Declaration of Chanda Watlington dated June 11, 2018 [Doc. 176] ¶¶ 3-4; Phone records [Docs. 178-2 through 178-5]; Chart of E-mails [Doc. 178-1] (detailing hundreds of e-mails sent by Al Khafaji to twenty different Interra customers after he left the company). The evidence reflects that some of the calls Al Khafaji placed to Interra customers after he left Interra on February 6, 2015, took place before he began work at Intervision on February 23, 2015. Defs.' Resp. to Interra's Add'l SMF ¶ 214; Phone records [Doc. 178-2]. The evidence also reflects that many of the sales that Al Khafaji was responsible for while at Intervision were sales to Interra customers he serviced while at Interra. Defs.' Resp. to Interra's Add'l SMF ¶¶ 230-31; Invoice Profitability Reports [Docs. 188-1, 188-2]. *15 Al Khafaji does not address the evidence indicating that he communicated via phone and e-mail with the Interra clients he serviced while he was employed by Interra. Al Khafaji's Reply in Supp. of MSJ [Doc. 210]. Instead, he relies on the purported scarcity of any direct evidence of him soliciting Interra customers and argues that the e-mails which appear to evince a direct solicitation by him of an Interra customer are not actually solicitations, but instead responses to customer requests. Id. at 6-8. Specifically, Al Khafaji argues that it is customary in this industry for clients to request “offers” from salespeople such as himself. Id. Thus, he suggests when he sent e-mails to Interra customers “offering” a certain product at a certain price, it is possible that he was responding to the customer's request.[12] Id. Viewing the evidence in a light most favorable to Interra and drawing all reasonable inferences therefrom, the Court finds that there are genuine issues of material fact as to whether Al Khafaji used his Interra customer list and solicited Interra customers in violation of Sections 4 and 5 of the Employment Agreement. 2. Damages Al Khafaji argues that he is entitled to summary judgment on Interra's claim for breach of contract because there is no evidence that Interra was harmed by any alleged breach of contract. Al Khafaji's MSJ at 2, 12-20. Al Khafaji also argues Interra's claims for disgorgement of Khafaji's salary and bonuses as well as Interra's claims for punitive damages and attorneys' fees fail because these remedies are unavailable to Interra under controlling law. Id. a. Absence of Evidence of Damages Al Khafaji argues that Interra's breach of contract claim fails because Interra has failed to present any factual evidence supporting its position that Al Khafaji's breach of contract caused Interra damages in the form of the lost profits it is seeking. Al Khafaji's MSJ at 2, 13-16. Pretermitting an analysis of Interra's evidence of damages, the Court finds that this argument is without merit. Once the plaintiff meets the[ ] evidentiary burdens [associated with a claim for breach of contract (i.e., valid contract, consideration, breach)], the defendant is not entitled to summary judgment on the claim, even if the plaintiff fails to present any admissible evidence to establish the amount of actual damages flowing from the breach. This is because, under OCGA § 13-6-6, in every case of breach of contract, the injured party has a right to damages, but, if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action. Eastview Healthcare, LLC v. Synertx, Inc., 296 Ga. App. 393, 399 (2009) (internal punctuation and citation omitted) (denying motion for summary judgment based on lack of evidence of damages resulting from alleged breach of contract); Justice v. SCI Ga. Funeral Servs., Inc., 329 Ga. App. 635, 636-37 (2014) (holding that the lack of evidence of “damages flowing from the presumed breach did not authorize the court's entry of summary judgment.”). b. Damages Contemplating Al Khafaji's Bonuses Al Khafaji next argues that to the extent Interra is seeking the disgorgement of Al Khafaji's salary bonuses, this is an equitable remedy that is unavailable to Interra where there is an enforceable contract in existence. Al Khafaji's MSJ at 16-17 (citing Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC v. Teledyne Techs., Inc., No. 1:12-CV-0686-JEC, 2013 WL 4806894, at *12 (N.D. Ga. Sept. 9, 2013), aff'd, 606 F. App'x 567 (11th Cir. 2015)). Al Khafaji's argument is misplaced. The Teledyne Techs. case upon which Al Khafji relies in support of this argument makes clear that an independent cause of action for disgorgement is available to a litigant only in “cases where there is no enforceable contract.” Id. Furthermore, the equitable remedy of disgorgement is unavailable if there is a remedy at law for damages. See Liniado v. Alexander, 199 Ga. App. 256, 258, (1991) (“Even where a plaintiff has petitioned for equitable remedy, equity will be denied if there is a remedy at law for damages.”). *16 However, in this case, Interra is seeking legal damages that are incident to Al Khafaji's breach of the Employment Agreement, and Interra has identified the bonuses he received from Intervision as being incident to his breach of his Employment Agreement. See Williamson v. Palmer, 199 Ga. App. 35, 36 (1991) (holding that “damages are not limited to lost profits, but encompass all damages incident to defendants' breach of the covenant not to compete.”). Typically plaintiffs seek injunctive relief to enforce non-compete agreements, but, as with the breach of any contract provision, money damages may be sought for breach of a restrictive covenant or nondisclosure provision. In Georgia, the damages recoverable for breach of a restrictive covenant are lost profits as well as the loss of customers, the loss of employees, and the decreased value of the business property purchased in reliance on the covenant. Indeed, it has been stated that recoverable damages are simply all damages incident to the breach. The same standard of damages applies where a nondisclosure agreement is breached, although when an employee wrongfully profits from the use of information wrongfully obtained from his employer, damages also may be measured by the employee's unjust gain derived from the unlawful use. Direct Response Prods., Inc. v. Thomas, No. 1:13-CV-1526-WSD, 2013 WL 5890473, at *3-4 (N.D. Ga. Nov. 1, 2013); see also Acuity Brands, Inc. v. Bickley, No. 13-366-DLB-REW, 2017 WL 1426800, at *20 (E.D. Ky. Mar. 31, 2017) (quoting Thomas) (applying Georgia law to find that “in the nondisclosure context, ‘when an employee wrongfully profits from the use of information wrongfully obtained from his employer, damages also may be measured by the employee's unjust gain derived from the unlawful use.’ ”). Accordingly, because Interra is not seeking disgorgement of Al Khafaji's bonuses as a separate remedy, but is instead seeking the value of his bonuses as an element of its damage claim, Al Khafaji is not entitled to summary judgment on the element of Interra's damage claim related to any bonuses he may have received from Intervision. c. Punitive Damages Al Khafaji argues that Interra is not entitled to damages for reputational harm or punitive damages related to its breach of contract claim. Al Khafaji's MSJ at 17-18. In response, Interra acknowledges that it is seeking punitive damages and damages related for reputational harm under its claims under the Lanham Act (Count I) and related state law claims in Counts IV-VI. Interra's Mem. in Opp'n to Al Khafaji's MSJ [Doc. 168] (“Opp'n to Khafaji MSJ”) at 22-23. Because the Court has found that Defendants are entitled to summary judgment on Interra's claims in Counts I and IV through VI, damages for reputational harm and punitive damages are unavailable for those claims. See Williamson v. Palmer, 199 Ga. App. at 36 (“Generally, punitive damages are not recoverable for breach of contract, even though the breach may be in bad faith.”) (citations and quotation omitted); OCGA § 13-6-10 (“Unless otherwise provided by law, exemplary damages shall never be allowed in cases arising on contracts.”). d. Attorneys' Fees Al Khafaji argues that Interra is not entitled to attorneys' fees in this case because (1) Defendants are entitled to summary judgment on all of the substantive claims, and (2) an award of attorneys' fees is inappropriate under O.C.G.A. § 13-6-11 given the facts of this case. Al Khafaji's MSJ at 18-19. Al Khafaji's first argument fails as this Court has found above that genuine issues of material fact preclude summary judgment on Interra's breach of contract claim. *17 In response to Al Khafajis second argument, Interra argues that whether there are sufficient facts to support an award of attorneys' fees under O.C.G.A. § 13-6-11, is a question for the jury and not appropriate for consideration on summary judgment. Opp'n to Khafaji MSJ at 24-25. Nevertheless, Interra contends there is sufficient evidence of bad faith on the part of Khafaji to withstand summary judgment on this issue. Id. The Court agrees with Interra. “As indicated by the plain language of the statute, the determination of whether there has been bad faith in support of an award pursuant to OCGA § 13-6-11 is normally an issue for a jury.” Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Cmty. Tr., 298 Ga. 221, 238 (2015) (citing O.C.G.A. § 13-6-11 (“The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”)). The court finds that the issue of attorneys' fees pursuant to O.C.G.A. § 13-6-11 is more appropriately left for the jury, especially in this case where Interra has presented evidence that Al Khafaji exhibited bad faith by using his Interra customer list while working for Intervision to solicit those customers even after Interra warned him that this action violated his Employment Agreement. Accordingly, Al Khafaji's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as to Count II. Viewing the evidence in the light most favorable to Interra, the Court finds that there is no issue of material fact and that Al Khafi is entitled to summary judgment on Interra's claims for reputational harm or punitive damages. There are genuine issues of material fact precluding summary judgment on the remainder of Al Khafaji's Motion for Summary Judgment as to Count II. D. Tortious Interference with Contract and Business Relations (Count III) In Count III, Interra alleges that Intervision tortiously interfered with (1) the Al Majar Agreement, (2) the Employment Agreement between Interra and Al Khafaji, and (3) Interra's business relations with its key customers. Fourth Am. Compl. ¶¶ 138-73. Tortious interference claims, whether asserting interference with contractual relations, business relations, or potential business relations, share certain common essential elements: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or their parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant's tortious conduct proximately caused damage to the plaintiff. Gordon Document Prods., Inc. v. Serv. Techs., Inc., 308 Ga. App. 445, 449 (2011) (citations omitted); Rowell v. Phoebe Putney Mem'l Hosp., Inc., 338 Ga. App. 603, 604 (2016). Although Interra has pleaded them in one count, its claims for tortious interference with contract and business relations are three separate claims: (1) interference with the Al Majar Agreement, Fourth Am. Compl. ¶¶ 149-64; (2) interference with the Khafaji Employment Agreement, id. ¶¶ 139-48; and (3) interference with Intervision's business relationships with certain “key customers,”[13] id. ¶¶ 165-72. Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396, 1407 (11th Cir. 1998) (“tortious interference with contract and business relationships state two independent but related claims”); Agilysys, Inc. v. Hall, No. 1:16-CV-3557-ELR, 2017 WL 2903364, at *14 (N.D. Ga. May 25, 2017) (same). The claims require proof of different elements. Camp Creek, 139 F.3d at 1407. 1. Tortious Interference with Contractual Relations *18 To recover for tortious interference with contractual relations, “a plaintiff must establish the existence of a valid contract and that the defendant acted intentionally, without privilege or legal justification, to induce another not to enter into or continue a business relationship with the plaintiff, thereby causing the plaintiff financial injury.” Atlanta Mkt. Ctr. Mgmt. Co. v. McLane, 269 Ga. 604, 608 (1998). “[O]nly strangers to the contractual relationship and to the underlying business relationship are liable for tortious interference.” Tom's Amusement Co. v. Total Vending Servs., 243 Ga. App. 294, 296 (2000). [A]n employee is permitted to solicit his former customers on behalf of a new employer. Fair competition is always legal, and absent a valid noncompete or nonsolicit covenant a former employee may go to customers whom he procured for the old employer and endeavor to persuade them to change their trade to his advantage. Id. at 298 (quotation marks and footnotes omitted). “[A] competitor's privilege of fair competition is lost when wrongful means in the solicitation of employees are utilized. Such wrongful means generally involve predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions.” Id. at 297 (footnote omitted). a. Al Majar Agreement Intervision argues that Interra's claim that Intervision interfered with the Al Majar Agreement fails as a matter of law for three reasons: (1) it is undisputed that Intervision was unaware of the Al Majar Agreement until this litigation was initiated; (2) the Al Majar Agreement terminated in January 2015, before Al Khafaji left Interra and went to work for Intervision; and (3) the termination of the Al Majar Agreement was initiated by Al Majar for business reasons. Intervision's MSJ at 16-18. Interra did not respond to this argument, which indicates that it does not disagree. See Kramer v. Gwinnett Cty., 306 F. Supp. 2d 1219, 1221 (N.D. Ga. 2004) (“a party's failure to respond to any portion or claim in a motion indicates such portion, claim or defense is unopposed”). The Court finds that because there is no evidence that Intervision was aware of the Al Majar Agreement, it is entitled to summary judgment on Interra's claim for tortious interference with this contract. See 1524948 Alberta Ltd. v. Lee, No. 1:10-CV-02735-RWS, 2011 WL 2899385, at * 10 (N.D. Ga. July 15, 2011) (holding that there must be evidence that a defendant knew of the contract and intended to interfere with it); Tom's Amusement Co., 243 Ga. App. at 296-97 (dismissing a claim for intentional interference with contractual relationship, holding that a party could not intentionally and maliciously interfere with a contract of which it was unaware). b. Al Khafaji's Employment Agreement Intervision argues that it is entitled to summary judgment on Interra's claim that it tortiously interfered with the Al Khafaji Employment Agreement because there is no evidence that Intervision induced him to breach the agreement, “let alone that it did so using ‘predatory tactics’ intending to harm Interra.” Intervision's MSJ at 4-8 (citing EarthCam, Inc. v. OxBlue Corp., 49 F. Supp. 3d 1210, 1234 (N.D. Ga. 2014), aff'd, 703 F. App'x 803 (11th Cir. 2017) (“Improper action or wrongful conduct” “generally involves predatory tactics such as violence, fraud, misrepresentation, defamation, use of confidential information, abusive civil lawsuits, and unwarranted prosecutions.”)). *19 Interra counters that Intervision knew of Al Khafaji's Employment Agreement and the restrictions on his ability to solicit business and that it hired him nevertheless, “for the express purpose of selling to the same client base he served at Interra.” Interra's Mem. in Opp'n to Intervision's MSJ [Doc. 166] (“Opp'n to Intervision's MSJ”) at 5. In addition to knowing about the Al Khafaji Employment Agreement, Interra presented evidence that Intervision helped craft Al Khafaji's resignation letter[14] and took “affirmative acts” to induce Al Khafaji's breach of his Employment Agreement and to hide his violations from discovery. Id. at 4-8. Specifically, Interra presented an October 29, 2014, internal Intervision e-mail in which Hector Rainey, the President of Intervision, said “If we hire someone (like Mohammed [Al Khafaji] for example) to handle the M/East, he will also bring his own customer base.” E-mail from Hector Rainey to Nabil Issa (Oct. 29, 2014) [Doc. 184-1]. Interra also presented evidence that Al Khafaji started servicing his former clients soon after he arrived at Intervision. See, e.g., internal Intervision E-mail from Al Khafaji to Hector Rainey (March 19, 2015) [Doc. 187-1] (listing twenty-one customers “that will go under my name,” five of which were Al Khafaji's former clients at Interra); Intervision E-mail from Al Khafaji to a third party (March 23, 2015) [Doc. 187-3] (listing ten customers Intervision was working with, all ten of which were Al Khafaji's former clients at Interra); internal Intervision E-mail from Al Khafaji to Shirley Andrews (March 30, 2015) [Doc. 187-2] (listing twenty customers “that will be under my name so far,” four of which were Al Khafaji's former clients at Interra). The evidence presented by Interra suggests that Intervision knew some of the business Al Khafaji was generating was from his former Interra clients. Dep. Tr. of Hector Rainey dated Oct. 24, 2017 [Doc. 97-1] (“Rainey Dep.”) at 83-86. Finally, Interra presented evidence it contends demonstrates that Intervision arguably was trying to conceal Al Khafaji's sales on the internal Intervision profitability reports, changing Al Khafaji's entries from “MK” to “HR,” in order to “keep [Al Khafaji's] name off books until all is cool with Interra.” Internal Intervision E-mail dated June 1, 2015 [Doc. 187-5]; Intervision Invoice Profitability Reports [Docs. 188-1 &188-2]. Although the Court has found a genuine disputed issue of material fact as to whether Al Khafaji violated his Employment Agreement, Interra's evidence does not create a genuine disputed issue of material fact that Intervision tortiously interfered with that contract. It is undisputed that Intervision was aware of the Employment Agreement and, viewed in a light most favorable to Interra, the evidence presented reveals Intervision knew that some of the clients Al Khafaji was contacting were his former Interra clients. However, none of this evidence demonstrates that Intervision intentionally induced Al Khafaji to violate his Employment Agreement through improper action or wrongful conduct. See Matthew Focht Enters., Inc. v. Lepore, No. 1:12-CV-04479-WSD, 2013 WL 4806938, at *7 (N.D. Ga. Sept. 9, 2013) (internal punctuation and citation omitted) (“the undisputed evidence is that Defendant did not engage in any wrongful inducing activity to cause this change in commercial relationships. Simply persuading someone to breach a contract, absent predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, and abusive civil suits, is not improper conduct that constitutes a tortious interference with contractual relationships.”); compare Carroll Anesthesia Assocs., P.C. v. AnestheCare, Inc., 234 Ga. App. 646, 647 (1998) (finding that new employer's offer to indemnify new employees subject to restrictive employment covenants from previous employer was sufficiently malicious to preclude summary judgment on tortious interference claim). Interra has presented no evidence of the requisite “improper action or wrongful conduct” on the part of Intervision. Although the evidence and logical inferences drawn therefrom supports the argument that Al Khafaji was using confidential information, there is no evidence that Intervision engaged in any wrongful conduct that induced the use of such information. Accordingly, viewing the evidence in a light most favorable to Interra and drawing all reasonable inferences therefrom, the Court concludes that no reasonable juror could find that Intervision tortiously interfered with the Al Khafaji Employment Agreement. See HCC Ins. Holdings, Inc. v. Flowers, 237 F. Supp. 3d 1341, 1356 (N.D. Ga. 2017) (granting summary judgment to the defendant employer finding in dicta that the plaintiff failed to present any evidence that the defendant did anything to induce the plaintiff's former employee to steal any information in violation of an employment agreement); EarthCam, 49 F. Supp. 3d at 1234-35 (granting summary judgment to the new employer defendant on claim by former employer for tortious interference with employment contract where the former employer failed to present any evidence of improper conduct); LifeBrite Labs., LLC v. Cooksey, No. 1:15-CV-4309-TWT, 2016 WL 7840217, at *9 (N.D. Ga. Dec. 9, 2016) (“Having a conversation with someone for the purpose of trying to win his business is not in the same [wrongful action] category.”). 2. Tortious Interference with Business Relationships *20 To establish a claim for tortious interference with business relations, a plaintiff must prove that the defendant: (1) acted improperly and without privilege; (2) purposefully, with malice, and with intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) plaintiff suffered some financial injury as a result. Servicetrends, Inc. v. Siemens Med. Sys., Inc., 870 F. Supp. 1042, 1068 (N.D. Ga. 1994), opinion amended on reconsideration sub nom. Servicetrends, Inc. v. Siemens Med. Sys., No. 1:93-CV-299-JTC, 1994 WL 776878 (N.D. Ga. June 24, 1994) (citations and internal punctuation omitted); Renden, Inc. v. Liberty Real Estate Ltd. P'ship III, 213 Ga. App. 333, 334 (1994). “Tortious interference is based on the premise that a defendant's false representation induced a third party to not do business with the plaintiff.” Advanced Testing Techs. Inc. v. CDI Corp., 660 F. App'x 889, 891 (11th Cir. 2016). Intervision argues that it is entitled to summary judgment on Interra's claim that Intervision tortiously interfered with the business relations it had with its customers because there is no evidence of wrongful conduct, no evidence of specific intent to harm Interra, no evidence that Intervision induced any Interra customer to stop buying from Interra, and no evidence that any wrongful act on the part of Intervision was the proximate cause of any damage. Intervision MSJ at 8-15. Pretermitting analysis of the other elements, the Court finds that Interra has not presented sufficient evidence that Intervision's alleged intentional act induced customers to leave Interra. Interra contends that the evidence demonstrates that Interra's sales in the Middle East declined after Al Khafaji left Interra and went to work with Intervision and, concomitantly, Intervision's Middle East sales increased and that this is sufficient to avoid summary judgment. Opp'n to Intervision's MSJ at 10 (citing Witty v. McNeal Agency, Inc., 239 Ga. App. 554, 562 (1999)). Interra has not presented any evidence from any customer indicating that it stopped buying from Intervision because Al Khafaji solicited their business for Intervision.[15] To the contrary, the only evidence before the Court that is directly from an Interra customer indicates that it was not induced to end its relationship with Interra because of any act on the part of Intervision and Al Khafaji. Al Sudani testified that he terminated the Al-Majar Agreement with Interra for business reasons prior to Al Khafaji joining Intervision. Specifically, Al Sudani testified that he terminated the Al Majar Agreement, and thus the relationship between Interra and Al Majar, because “the prices were too high.” Al Sudani Dep. at 79-81. In fact, Interra's former employee Robin Tommalieh testified that after Al Majar terminated the Al Majar Agreement, Interra did not go back to Al Majar with any proposals to re-start the Jannat business until February 2016. Tommalieh Dep. at 218. Additionally, Al Sudani affirmatively testified that Al Khafaji working at Intervision was not a reason why he elected to start purchasing Jannat chicken from Intervision. Sudani Dep. at 190-91 (“Q: Was one of the reasons you decided to buy the Jannat chicken from Intervision because Mr. Khafaji was working there? A: No, that was not the reason. The reason was because they met the -- my – my conditions.”). Al Sudani testified that no one at Intervision ever asked him to cease his business with Interra and no one at Intervision ever interfered with his ability to purchase chicken from Interra. Id. at 96-97. *21 Interra asks this Court to infer that Defendants improperly induced Interra customers to leave solely from the fact that its sales in the Middle East to customers formerly serviced by Al Khafaji decreased and Intervision's sales in the Middle East increased. However, Interra admits that it is not uncommon for its customers to buy the same products from its competitors, including Intervision. Interra's Resp. to Intervision's SMF ¶ 76; Dep. Tr. of Stephen Thomas Isaf (Feb. 13, 2018) [Doc. 104-1] at 106-07. The only specific evidence in the record from the actual customers is to the contrary. Moreover, the undisputed evidence is that many of the customers Interra references continued to do business with Interra after Khafaji left. See Interra's Resp. to Intervision's First Set of Req. for Admission [Doc. 163-2] at 10-13 (indicating that Interra continued to sell food products to fourteen of the customers at issue after Al Khafaji went to work for Intervision); Tommalieh Dep. at 178 (indicating that as of September 2016, Al Majar was a strong client who bought from Interra on a frequent basis). Additionally, based on the internal Intervision e-mails Interra has presented to the Court in support of the position that Al Khafaji was servicing its clients after he left Interra, the majority of companies Interra contends Al Khafaji serviced were not former Interra customers. See Internal Intervision E-mails [Docs. 187-1 through 187-3] (indicating that, of the fifty-one new Al Khafaji clients, nineteen were his former Interra clients). The undisputed evidence is that Al Khafaji was never asked for any confidential Interra information and never provided any confidential Interra information to Intervision. Al Khafaji Dep. at 197, 286-87. Interra has not presented any evidence that Al Khafaji ever provided any confidential Interra information to Intervision. See Green Dep. at 55 (indicating that he did not personally have any information indicating that Khafaji disclosed confidential information to Intervision, just his personal inference that he must have because after Khafaji left, Interra's business dropped). Further, the undisputed evidence is that Al Khafaji was instructed to help with Intervision's current customers and to “only sell to customers that we already had at Intervision Foods.” Rainey Dep. at 72-78; Dep. Tr. of Charles H. Angstadt, IV taken Oct. 27, 2017 [Doc. 92-1] at 65-68, 73-74; Al Khafaji Dep. at 22-23. Interra's reliance on Witty, 239 Ga. App. at 562 (1999), for the proposition that evidence of past profitability and loss of clients to defendant is sufficient evidence of inducement is misplaced. Witty involved an employee who left one stock brokerage firm for another. Id. 239 Ga. App. at 554. The evidence in that case showed that the defendant competitor firm encouraged the employee to breach the notice provision in his employment contract so that he could contact his clients before the old firm had a chance to call and try to retain them. Id. The evidence also showed that the new firm expected the employee to bring his client lists and expected him to solicit those clients, which he did. Id. at 561. In fact, [defendant employer] had a wrongful motive in having Witty make the termination immediate without the required notice period; such action gave Witty time to solicit the [old employer's] clients so soon after the termination that the defendants would not have time to contact their clients first. Witty sought to acquire the clients for [defendant employer] to the detriment of the defendants during the two weeks. Further, [defendant employer] expected Witty to bring some or all of the customer lists, even if he had to hand write them (as he did), so that he could solicit them to move their accounts during the two week period. Id. The court found that this evidence was sufficient to support the trial judge's denial of a motion for directed verdict on the old employer's claim for tortious interference with the employee's employment contract. Unlike in Witty, the evidence in this case fails to support a showing that Intervision induced a former Interra customer to discontinue its business relationship with Interra. Viewing the evidence in the light most favorable to Interra, and drawing all reasonable inferences therefrom, the Court finds that no reasonable jury could conclude that Intervision acted with malice and intent to injure or induced any Interra customer to discontinue a business relationship with Interra. Therefore, Intervision's Motion for Summary Judgment is GRANTED as to Count III. E. Intervision's Counterclaim *22 Intervision seeks a declaration from this Court that Interra does not have any right, title, or interest in the Jannat Logo or Jannat brand name. Intervision's Countercl. [Doc. 73] at 75-77. Interra argues that it is entitled to judgment as a matter of law on this counterclaim, citing the same evidence it relied upon in support of its argument regarding the Lanham Act claims in Count I. The Court agrees with Interra as it relates to the Jannat Logo. Under the common law, trademark rights are appropriated only through actual prior use in commerce. United States v. Steffens, 100 U.S. 82 (1879); J. McCarthy, Trademarks and Unfair Competition § 16:1, at 720 (2d Ed. 1984). Trademark ownership is always appurtenant to commercial activity. Thus, actual and continuous use is required to acquire and retain a protectible interest in a mark. Tally-Ho, 889 F.2d at 1022-23. As detailed above, the undisputed evidence demonstrates that Interra has used the Jannat Logo in commerce in a sufficiently “open” or “public” way such that it has enforceable rights to that mark under the Lanham Act. Accordingly, Interra's Motion for Summary Judgment is GRANTED as to Intervision's Counterclaim regarding the Jannat Logo. With regard to the Jannat brand name, no party has defined what that the “Jannat brand name” is and it is not apparent from the Complaint or Counterclaim or any of the parties' pleadings. Is the Jannat brand name just the word “Jannat”? Is it in all capital letters as used in the Counterclaim? Is it comprised of the word “Jannat” written in both English and Arabic? Because the “Jannat brand name” has not been defined, the Court is unable to assess what evidence, if any, there is to support Interra's motion. Accordingly, Interra's Motion for Summary Judgment is DENIED as it relates to Intervision's Counterclaim regarding the Jannat brand name. V. CONCLUSION For the foregoing reasons, it is hereby ORDERED that Defendant Mohammed Al Khafaji's Motion for Rule 37(c)(1) Sanctions [Doc. 141] is DENIED. It is further ORDERED that Defendant Intervision, LLC's Motion to Strike, or in the Alternative, Notice of Objection to the Declarations of William Green and Stephen Isaf [Doc. 203] is DENIED. It is further ORDERED that Plaintiff Interra International, LLC's Motion for Summary Judgment [Doc. 90] is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as it relates to Intervision's Counterclaim regarding the Jannat Logo. The motion is otherwise DENIED. It is further ORDERED that Defendant Intervision, LLC's Motion for Summary Judgment [Doc. 113] is GRANTED. Interra's claims in Counts I, III, IV, V, and VI of the Fourth Amended Complaint against Intervision, LLC, are hereby DISMISSED.[16] It is further ORDERED that Defendant Mohammed Al Khafaji's Motion for Summary Judgment [Doc. 128] is GRANTED IN PART and DENIED IN PART. The motion is granted as to Interra's claims in Counts I, IV, V, and VI, of the Fourth Amended Complaint against Al Khafaji and Interra's claims for reputational harm or punitive damages in relation to the breach of contract count (Count II), all of which are DISMISSED. The motion is otherwise DENIED. Consequently, the only remaining claims in this case are Interra's claims in Count II (except for reputational harm and punitive damages) against Al Khafaji and Intervision's Counterclaim regarding the Jannat brand name. *23 It is further ORDERED that the parties shall file their consolidated proposed pre-trial order within thirty (30) days of the date of this Order. IT IS SO ORDERED this 21st day of March, 2019. Footnotes [1] At the outset, the Court notes that as this case is before it on the parties' cross motions for summary judgment, the Court views the evidence presented by the parties in the light most favorable to the non-movants and has drawn all justifiable inferences in favor of the non-movants. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Sunbeam TV Corp. v. Nielsen Media Research, Inc., 711 F.3d 1264, 1270 (11th Cir. 2013). In addition, the Court has excluded assertions of facts that are immaterial or presented as arguments or legal conclusions or any fact not supported by citation to evidence (including page or paragraph number). LR 56.1.B(1), NDGa. Further, the Court accepts as admitted those facts in the parties' respective statements of material facts that have not been specifically controverted with citation to the relevant portions of the record. See Interra's Resp. to Intervision's Statement of Facts [Doc. 166-1] (“Interra's Resp. to Intervision's SMF”); Interra's Resp. to Al Khafaji's Statement of Facts [Doc. 167-1] (“Interra's Resp. to Al Khafaji's SMF”); Defs.' Resp. to Interra's Statement of Undisputed Facts [Doc. 163-14](“Defs.' Resp. to Interra's SMF”); see also LR 56.1.B(2), NDGa. [2] Anwar Al Sudani (“Al Sudani”) is the principal of Al Majar and signed the Al Majar Agreement on its behalf. Al Majar Agreement; Decl. of Al Khafaji dated June 14, 2016 [Doc. 22-1] (“Al Khafaji Decl.”) ¶ 8; Defs.' Resp. to Interra's SMF ¶ 23. [3] The parties agree that the buiding depicted is Masjid-e-Nabvi, a mosque located in Medina, Saudi Arabia and considered to be the second holiest site is the Islamic world. Defs.' Resp. to Interra's SMF ¶ 50. Interra refers to this image as the “Interra Logo” in the Complaint, see Fourth Am. Compl. [Doc. 72] ¶ 41, and the “Jannat Logo” in its summary judgment papers, see Interra's SMF ¶ 44; see also Green Decl. ¶ 7. For sake of clarity, the Court will refer to this image as the Jannat Logo: [4] This example of a shipping label is attached to the Second Amended Complaint as Exhibit 5 [Doc. 38-5] (“Jannat Shipping Label”): [5] The Court refers to these two discovery responses collectively as the “May discovery responses.” [6] Collectively, the Court will refer to these discovery responses as the “February discovery responses.” [7] Al Khafaji does not address this discovery response. [8] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1, 1981. [9] Analysis of unfair competition is essentially the same as the trademark infringement count as to the likelihood of confusion factors. Golden Bear Int'l, Inc. v. Bear U.S.A., Inc., 969 F. Supp. 742, 748 (N.D. Ga. 1996) (“The test of federal trademark infringement is whether there is a ‘likelihood of confusion’ as a result of Defendant's activities. Similarly, an unfair competition claim under § 43(a) of the Lanham Act also depends on establishing a likelihood of confusion.”). The same is true for state-law statutory and common law unfair competition claims. Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1248 n.11 (11th Cir. 2007) (citation omitted) (noting that “the analysis of a Georgia unfair competition claim is ‘co-extensive’ with the analysis of a Lanham Act claim”); Kason Indus., Inc. v. Component Hardware Grp., 120 F.3d 1199, 1203 (11th Cir. 1997) (footnote omitted) (“It should be apparent that § 43(a) of the Lanham Act and § 10-1-372(a)(2) of the [Uniform Deceptive Trade Practices Act] provide analogous causes of action governed by the same standard.”). [10] See also Fourth Am. Compl. ¶ 41 (referring to the same image as the Interra Logo, which is “a drawing consisting of a building and a tower.”). [11] Because the Court finds that there is no likelihood of confusion as a matter of law, the Court need not consider Defendants' alternative arguments that Al Majar owned the Jannat mark and that Interra abandoned the Jannat mark. See Intervision's MSJ at 21-23. [12] Al Khafaji does not go so far as to address specific e-mails or present evidence of customers requesting offers from him. [13] Intervision identifies the following customers as its “key customers” in the Fourth Amended Complaint: Assahil Company, Teeba Farms Company, Anwar Makkah, Al Qudwa Foodstuff Co., LLC, Ahamed Tama General Trading Company, Al Hamadi Trading and Contracting LLC, Indemaj Food Company, Mawashi Food Company, Al Furat Company for Food & Meat Processing, Dijla Company for Food Industries, Kaylani Food Center, National Trading Company for Meat, Yousef Al-Akkad Sons Company, Best Negoce, Hijazi & Gosha, Societe Farah Trading Company, GEAP Foods, Ornina Food Stuff Trading LLC, Firas Hermiz Import Export, First Intercontinental, and Organic House. Id. ¶ 165. [14] The resignation letter provided by Intervision to Al Khafaji appears to be simple and generic. See Resignation Letter [Doc. 169-23] (“This letter constitutes an official two-week notice of my resignation from employment at Interra International. While my experience of working here has been fulfilling and professionally enriching, I feel that I have come to the point in my work life where it is in my best interest to pursue another career path. I would like to thank you sincerely for the opportunity that you have provided to work for your organization.”). The Court does not find that it is probative of any intent to do anything other than hire Al Khafaji, which, of course, was not in violation of the Employment Agreement and does not support Interra's claim for tortious interference. See Wood v. Archbold Med. Ctr., Inc., 738 F. Supp. 2d 1298, 1369 (M.D. Ga. 2010) (“Simply stating that there is a job available that pays a certain amount does not constitute tortious interference.”). [15] One of the “facts” listed in Interra's Statement of Additional Facts purports to indicate that an Interra customer did acknowledge it was induced to stop trading with Interra because of Defendants: “Teeba Farms told Interra traders that Khafaji had solicited their business, and Teeba Farms refused to complete a sale with Interra as a result.” See Defs.' Resp. to Interra's Add'l SMF ¶ 354. However, a cursory examination of the deposition transcript cited in support of this statement reveals that Interra's representation of this as a “fact” is false and disingenuous. The statement cites to the deposition of Green in which he indicates that he did not actually learn of this information from Teeba, but learned of it from Robin Tommalieh and that he could not recall if Teeba refused the sale because of Al Khafaji and Intervision's involvement or if it was because of price. Green Dep. at 111-14. Further, Tommalieh unequivocally testified that Teeba's decision not to buy from Interra did not have anything to do with Khafaji's alleged solicitation. Tommalieh Dep. at 144-45. [16] Intervision is DISMISSED as a party defendant but remains in this case as a counterclaimant.