Fang v. Big 5 Corp

Filing 14

ORDER granting dft's 6 Motion to Dismiss by Judge Robert S. Lasnik.(RS)

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1 Honorable Robert S. Lasnik 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 ROY FANG, 11 12 13 Case No. 2:13-CV-01926-RSL Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) v. BIG 5 CORP. Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 This matter comes before the Court on Defendant’s Motion To Dismiss For Failure To State A Claim FRCP 12(b)(6) or In The Alternative, Requiring Plaintiff to Post Security for Costs (Dkt. # 6). Plaintiff has not responded. The Court has considered the allegations of the Complaint (Dkt. #1) and taken judicial notice of Exhibits A – G in Defendant’s Request for Judicial Notice. (Dkt. # 7). Plaintiff is an “alien person” (Dkt. #1 at ¶6), Defendant is a “domestic person,” (Dkt. #1 at ¶ 7) and Plaintiff’s claims are “on account of “Defendant’s trademark (Dkt. #1 at ¶¶ 7-13) as those terms are defined in RCW 19.77.170. Plaintiff’s Taiwanese trademark is used by Plaintiff “outside the United States,” is not registered with the United States Patent and Trademark Office (“PTO”), is not capable of being registered with the PTO, and is junior to Defendant’s trademark. (Dkt. #1 at ¶¶ 13-14). In addition, Plaintiff’s claimed trademark does not cover 26 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) - 1 (Case No. 2:13-CV-01926-RSL) MILLER NASH LLP AT T OR NE YS AT LAW T : ( 2 0 6 ) 6 2 2 -8 4 8 4 | F : ( 2 0 6 ) 6 2 2 -7 4 8 5 4 4 0 0 T W O UNI ON S QU AR E 6 0 1 UNI ON ST R E E T SE AT T LE , W ASHI NGT ON 9 8 1 0 1 SEADOCS:461646.1 1 “retail sporting goods and wearing apparel stores,” which are the goods and services identified in 2 Defendant’s PTO-issued trademark. (Dkt. #1 at ¶¶ 13-14). 3 The Complaint fails to state a claim upon which relief can be granted, 4 FRCP 12(b)(6), because Plaintiff’s trademark is not entitled to Lanham Act protection, and 5 additionally, because RCW§19.77.170 applies to this action and bars recovery of “money 6 damages or equitable relief,” the very relief sought by Plaintiff. (Complaint, Dkt. #1, ¶ 48 and 7 Prayer for Relief). 8 It is ORDERED: 9 1. The Complaint is dismissed, and 10 2. The Clerk is directed to send copies of this Order to the parties, or counsel 11 for the parties, and to the Domain Name Registrar, eNom, Inc., 12 DONE THIS 26th day of March, 2014. 13 14 15 A Robert S. Lasnik 16 United States District Judge  17     18 19 20 21 22 23 24 25 26 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6) - 2 (Case No. 2:13-CV-01926-RSL) MILLER NASH LLP AT T OR NE YS AT LAW T : ( 2 0 6 ) 6 2 2 -8 4 8 4 | F : ( 2 0 6 ) 6 2 2 -7 4 8 5 4 4 0 0 T W O UNI ON S QU AR E 6 0 1 UNI ON ST R E E T SE AT T LE , W ASHI NGT ON 9 8 1 0 1 SEADOCS:461646.1