E Clampus Vitus v. Steiner et al
Filing
17
ORDER signed by Judge Garland E. Burrell, Jr., on 12/18/12 ORDERING that Defendants' anti-SLAPP motion to strike is DENIED, and Defendants' dismissal motion is GRANTED. Plaintiff is granted 14 days from the date on which this order is filed to file an amended complaint. Defendants' request for attorneys' fees under Rule 11 is DENIED. (Kastilahn, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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E CLAMPUS VITUS,
Plaintiff,
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v.
DAVID L. STEINER, THOMAS PEAK,
JOHN MOORE, KARL DODGE, JOSEPH
ZUMWALT CHAPTER 169 E CLAMPUS
VITUS, and DOES 1 through 50,
Defendants.
________________________________
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2:12-cv-01381-GEB-GGH
ORDER DENYING DEFENDANTS’
ANTI-SLAPP MOTION AND
GRANTING DEFENDANTS’ MOTION
TO DISMISS
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Defendants “move to dismiss and strike the Complaint,” which
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is comprised of federal trademark infringement and unfair competition
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claims and California unfair business practices and false advertising
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claims. Defendants move to strike the Complaint under California Civil
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Code section 425.16, which prohibits strategic lawsuits against public
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participation (“SLAPP”); Defendants seek dismissal of the Complaint
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under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Plaintiff did
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not oppose the motion.
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For the reasons stated below, Defendants’ motion to strike
will be denied, and Defendants’ dismissal motion will be granted.
I. FACTUAL ALLEGATIONS
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This action concerns Plaintiff’s allegations that Defendant
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Joseph Zumwalt Chapter 169 E Clampus Vitus, and individual Defendants
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who are agents/employees thereof, used certain of Plaintiff’s registered
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trademarks “for commercial purposes” in violation of the Lanham Act and
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California law. Plaintiff alleges in relevant part as follows:
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1.
Plaintiff
E
Clampus
Vitus, Inc.
(“Plaintiff”), is a corporation organized and
existing under the law of the State of California.
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. . . .
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15. Plaintiff brings this lawsuit to protect
the substantial good will that it has developed in
its distinctive E Clampus Vitus, ECV, and Clampers
trademarks
and
logos.
Plaintiff’s
federallyregistered
trademarks
are
U.S.
Trademarks
Registration No.’s 3226844, 3210518, 3148302,
3148312, 3237275, 3183357 which were registered
between September 26, 2006 through May 1, 2007 on
the principal register of the United States Patent
and Trademark Office. . . .
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16. Plaintiff uses the names and marks E
Clampus Vitus, ECV, and Clampers among other names
and marks to indicate membership in its’ [sic]
fraternal historical organization, to indicate
Plaintiff’s participation in services they provide
and receive, to notify members and non-members of
Clampers events, to inform the public of ECV
causes, gatherings, to send out informational
letters concerning Plaintiff’s fraternal historical
organization and newsletters in the field of
fraternal
historical
organizations.
Further,
Plaintiff has used and continues to use the E
Clampus Vitus, ECV, and Clampers marks, to offer
goods such as: Jewelry pins for use on hats; Lapel
pins; Ornamental lapel pins; Ornamental pins; Tie
pins; Golf shirts; headgear, namely hats, baseball
caps, caps, visors; Knit shirts; Polo shirts;
Hooded Sweat Shirts; Short-sleeved shirts; and Tshirts.
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17. Defendants have engaged in a pattern of
infringing activity where the trademarks of
Plaintiff were used. . . .
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18. Plaintiff is informed and believes and on
that
basis alleges that
in
December
2010,
Defendants participated in the City of Woodland
Christmas parade as a member of the Joseph Zumwalt
Chapter. Defendants used the registered trademarks
of Plaintiff for commercial purposes and caused
confusion by using and alleging that they had the
right to use the trademark rights of Plaintiff to
the names ECV, E Clampus Vitus and Clampers.
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19. On or about March 2011, Defendants
jointly conducted an event called the 4-SKIN DOINS,
in which the trademarks of Plaintiff were used for
commercial purposes.
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20. On
or
about
September
11, 2011,
Defendants Moore, Dodge and Peak participated in
the annual Georgetown Founders Day Celebration, on
September 18, 2011. At this event, the Defendants
used the registered trademarks of Plaintiff for
commercial purposes, causing public confusion, and
alleging that they had the right to use E Clampus
Vitus,
ECV,
and
Clampers;
all
Plaintiff’s
trademarks.
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21. Plaintiff[ is] informed, believe[s] and
on that basis allege[s] that on or about June 30,
2012 the Defendant Steiner and the Joseph Zumwalt
Chapter will be auctioning off a motorcycle under
the name Joseph Zumwalt ECV 169 . . . .
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22. Plaintiff[ is] informed, believe[s] and
on that basis allege[s] that Defendants have been
using Plaintiff’s trademarks, to misrepresent
themselves as the Plaintiff[], while collecting
monies and initiating new members, without the
consent of the Plaintiff[] in an amount to be
proven at trial.
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. . . .
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26. As its first ground for relief, Plaintiff
alleges
federal
trademark
infringement under
Section 32(1) of the Lanham Act, 15 U.S.C. §
1114(1)(a).
27. Plaintiff provides a service and sells:
Jewelry pins for use on hats; Lapel pins;
Ornamental lapel pins; Ornamental pins; Tie pins;
Golf shirts; headgear . . . ; [ and shirts] in
United States commerce under the ECV mark since
September through December 2006. It has used the E
Clampus Vitus mark continuously in United States
commerce since that time. . . .
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28. Defendants use of “ECV” “E Clampus Vitus”
and “Clamper” in the Woodland Christmas Parade as
Joseph Zumwalt ECV 169, and the sale of hot dogs at
the Georgetown Founders Day Event . . . in the name
of ECV Georgetown . . . represent an infringement
according to 15 USC [§] 1114(1)(a).
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. . . .
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32. As
its
second
ground
for relief,
Plaintiff alleges federal unfair competition under
15 U.S.C. § 1125(a) . . . .
33. Defendants’ unauthorized marketing and
sale of services and goods using the E Clampus
Vitus, ECV, and Clampers marks is likely to cause
confusion, and deceive the public as to Defendants’
affiliation.
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34. Defendants participation in the Woodland
Christmas Parade using ECV, E Clampus Vitus and
Clampers, constitutes Federal Unfair Competition
under
the
statute,
violating
15
U.S.C.
§
1125(a)(1)(A)-(B).
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. . . .
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38. As its third ground for relief, Plaintiff
alleges violation of California’s Business and
Professions Code § 17200 Unfair Competition.
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. . . .
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40. Plaintiff is informed and believes and
based upon that information and belief alleges that
[Defendants] have by continuing to use the
trademarked names owned by Plaintiff in their
commercial
endeavors,
violated
California’s
Business and Professions Code § 17200 Unfair
Competition . . . .
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41. Specifically, Defendants[’] sales of hot
dogs at the Georgetown Founders Day Event . . . ,
Defendants[’]
participation
in
the
Woodland
Christmas Parade using ECV, E Clampus Vitus and
Clampers,
and
displaying
signs
and
banners
identifying itself as Joseph Zumwalt Chapter 169 E
Clampus Vitus, constitute an “unlawful” business
act or practice, is an unfair business act, is
fraudulent, unfair and deceitful. . . . Defendants
have further violated California Business and
Professions
Code
§
17500,
committing
false
advertising, by selling goods and services,
misrepresenting their identity, and signing up new
“members,” who think they are joining E Clampus
Vitus, but in actuality, are not.
(Compl. ¶¶ 1, 15-22, 26-28, 32-34, 38, 40-41.)
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II. DISCUSSION
A.
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4
Motion to Strike
Defendants move to strike the Complaint under California Code
of Civil Procedure section 425.16, arguing:
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The gravamen of this Complaint is that defendants
marched together in a parade as Clampers, engaged
in various charitable works together as Clampers,
and held themselves out publicly to be Clampers . .
. . This is unequivocally protected speech the
whole purpose of which is to raise public awareness
and financial assistance for community and social
issues and needs.
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(Defs.’ Mot. 12:6-9, 12:15-21.)
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“[California Code of Civil Procedure s]ection 425.16, known as
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the anti-SLAPP statute, permits a court to dismiss certain types of
13
nonmeritorious [state law] claims early in the litigation.” Chavez v.
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Mendoza, 94 Cal. App. 4th 1083, 1087 (2001); see Hilton v. Hallmark
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Cards, 599 F.3d 894, 901 (9th Cir. 2010)(“[T]he anti-SLAPP statute does
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not apply to federal law causes of action.”).
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In bringing a section 425.16 motion to strike,
[Defendants] ha[ve] the initial burden to make a
prima facie showing that the plaintiff’s [state
law] claims are subject to section 425.16. If
[Defendants] make[] that showing, the burden shifts
to the plaintiff to establish a probability [it]
will prevail on the claim[s] at trial, i.e., to
proffer a prima facie showing of facts supporting a
judgment in the plaintiff’s favor.
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Chavez, 94 Cal. App. 4th at 1087 (citations omitted).
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“Section 425.16, subdivision (b)(1) defines the types of
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claims
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subdivision provides:
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that
are
subject
to
the
anti-SLAPP
procedures.”
A cause of action against a person arising
from any act of that person in furtherance of the
person's right of petition or free speech under the
United States Constitution or the California
Constitution in connection with a public issue
shall be subject to a special motion to strike,
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Id.
That
1
unless the court determines that the plaintiff has
established that there is a probability that the
plaintiff will prevail on the claim.
2
3
Cal.
4
furtherance of the person’s right of . . . free speech” is defined in
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the statute as:
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Code
Civ.
Proc.
§
425.16(b)(1).
The
phrase
“act
.
.
.
in
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(1) any written or oral statement or writing made
before a legislative, executive, or judicial
proceeding, or any other official proceeding
authorized by law, (2) any written or oral
statement or writing made in connection with an
issue
under
consideration
or
review
by
a
legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3)
any written or oral statement or writing made in a
place open to the public or a public forum in
connection with an issue of public interest, or (4)
any other conduct in furtherance of the exercise of
the constitutional right of petition or the
constitutional right of free speech in connection
with a public issue or an issue of public interest.
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Cal. Code Civ. Proc. § 425.16(e). “Although subsection (e) uses the word
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‘includes,’ its four categories exhaust the meaning of an act in
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furtherance of free speech or petitioning rights.” Hilton, 599 F.3d at
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903 n.5. “The only way [Defendants] can [satisfy their] threshold
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showing is to demonstrate that the conduct by which [Plaintiff] claims
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to have been injured falls within one of those four categories.”
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Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1130 (2003).
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Since Plaintiff’s state law claims do not involve allegations
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of
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consideration in, an official proceeding,” the only relevant categories
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of protected activity in this case are the third and fourth categories.
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Id. Both of these categories require that the alleged statements and/or
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conduct at issue concern a “public issue” or “issue of public interest.”
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Cal. Code Civ. Proc. § 425.16(e)(3)-(4); see also Weinberg, 110 Cal.
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App. 4th at 1132 (“[T]he third and fourth categories of conduct . . .
statements
made
“in,
or
in
connection
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with
an
issue
under
1
are
2
connection with an issue of public interest.”).
subject
to
the
limitation
that
the
conduct
must
be
made
in
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“Section 425.16 does not define ‘public interest’ or ‘public
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issue.’ Those terms are inherently amorphous and thus do not lend
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themselves to a precise, all-encompassing definition.” Cross v. Cooper,
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197 Cal. App. 4th 357, 371 (2011). However, a number of “guiding
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principles” have been “derived from decisional authorities.” Weinberg,
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110 Cal. App. 4th at 1132. For example, “a matter of public interest
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should be something of concern to a substantial number of people. Thus,
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a matter of concern to the speaker and a relatively small, specific
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audience is not a matter of public interest.” Id. (citation omitted).
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Further,
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[i]n order to satisfy the public issue/issue of
public interest requirement of section 425.16,
subdivision (e)(3) and (4) . . . , in cases where
the issue is not of interest to the public at
large, but rather to a limited, but definable
portion
of
the
public
(a
private
group,
organization, or community), the constitutionally
protected activity must, at a minimum, occur in the
context of an ongoing controversy, dispute or
discussion, such that it warrants protection by a
statute that embodies the public policy of
encouraging participation in matters of public
significance.
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Du Charme v. Int’l Bhd. of Elec. Workers, Local 45, 110 Cal. App. 4th
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107, 119 (2003); see also Kurwa v. Harrington, Foxx, Dubrow & Canter,
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146 Cal. App. 4th 841, 847-49 (2007)(applying Du Charme in denying anti-
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SLAPP motion).
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This action concerns the alleged use of Plaintiff’s registered
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trademarks,
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membership in Plaintiff’s fraternal historical organization. (Compl.
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¶16.) Defendants have not shown that their alleged wrongful conduct
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concerns “the public at large,” rather than a “definable portion of the
“E
Clampus
Vitus,
ECV,
7
and
Clampers”
which
indicate
1
public,”
2
organization.
3
alleged
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controversy, dispute, or discussion among the group allegedly affected
5
by their conduct. Since Defendants have not satisfied their threshold
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burden of showing Plaintiff’s state law claims arise out of protected
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activity, Defendants’ anti-SLAPP motion to strike is denied.
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i.e.,
members
Further,
wrongful
B.
and/or
supporters
Plaintiff
conduct
was
does
made
of
not
in
the
Plaintiff’s
allege
that
context
of
fraternal
Defendants’
an
ongoing
9
Motion to Dismiss
Decision
on
Defendants’
Rule
12(b)(6)
dismissal
motion
10
requires
11
allegations, together with all reasonable inferences, state a plausible
12
claim for relief.” Cafasso, United States ex rel. v. Gen. Dynamics C4
13
Sys., Inc., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v.
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Iqbal, 556 U.S. 662, 678-79 (2009)). “A claim has facial plausibility
15
when the plaintiff pleads factual content that allows the court to draw
16
the reasonable inference that the defendant is liable for the misconduct
17
alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550
18
U.S. 544, 556 (2007)).
determination
of
“whether
the
[C]omplaint’s
factual
19
When determining the sufficiency of a claim, “[w]e accept
20
factual allegations in the complaint as true and construe the pleadings
21
in the light most favorable to the non-moving party[; however, this
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tenet does not apply to] . . . legal conclusions . . . cast in the form
23
of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.
24
2011) (citation and internal quotation marks omitted). “Therefore,
25
conclusory
26
insufficient to defeat a motion to dismiss.” Id. (citation and internal
27
quotation marks omitted); see also Iqbal, 556 U.S. at 678 (“A pleading
28
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
allegations
of
law
and
8
unwarranted
inferences
are
1
elements of a cause of action will not do.’”(quoting Twombly, 550 U.S.
2
at 555)).
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1)
Federal
Trademark
Infringement,
Federal Unfair
4
Competition and California Unlawful Business Practices
5
Claims
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Defendants seek dismissal of the Complaint, arguing, inter
alia, that the Complaint
does not plead any facts on which the Court could
conclude that there is a likelihood of confusion
between [D]efendants’ alleged use of identical
trademarks in connection with their activities and
[P]laintiff’s alleged use of its registered
trademarks
in
connection
with
apparel
and
jewelry[;] . . . [i]nstead, the Complaint simply
asserts that confusion is likely . . . .
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(Defs.’ Mot. 2:19-22.) Defendants further argue:
[the Complaint] does not plead which marks
[D]efendants
allegedly
used,
how
they
were
allegedly used, and what universe of consumers is
allegedly likely to be confused. It does not plead
that the services/goods are related, which it
cannot do because marching in a parade, conducting
an unspecified “event,” selling hot dogs at a
fundraiser and auctioning a motorcycle as a
fundraiser have nothing whatsoever to do with
[P]laintiff’s alleged use of its marks for apparel
and jewelry. . . .
At bottom, the Complaint is premised on the
assumption that the use of a designation as a trade
or service mark that is identical to a registered
trademark
constitutes
trademark
infringement
irrespective of the goods or services involved.
Sleekcraft and its progeny hold otherwise, and the
failure even to mention the Sleekcraft factors
dooms the Complaint. It is defective because it
asserts
a
wildly
implausible
theory
(that
[D]efendants’ activities are related to apparel and
jewelry) with conclusory assertions. It should be
dismissed.
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27
Id. at 7:16-8:2 (citations omitted).
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“To plead a prima facie case of trademark infringement, the
2
plaintiff must allege that a mark is confusingly similar to a valid and
3
protectable mark of the plaintiff.” Herb Reed Enters., Inc. v. Bennett,
4
No. 2:10-CV-1981 JCM (RJJ), 2011 WL 2607079, at *2 (D. Nev. June 30,
5
2011) (citing Brookfield Commc’ns Inc. v. W. Coast Entm’t Corp., 174
6
F.3d 1036, 1046 (9th Cir. 1999)). “The ‘ultimate test’ . . . [is]
7
whether
8
similarity of the marks.” Century 21 Real Estate Corp. v. Sandlin, 846
9
F.2d 1175, 1178 (9th Cir. 1988). The same test applies to Plaintiff’s
10
unfair competition claims under both federal and California law. Century
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21 Real Estate LLC v. All Prof’l Realty, Inc., No. CIV 2:10-2751, 2011
12
WL 221651, *10 (E.D. Cal. Jan. 24, 2011); see also Murray v. Cable Nat’l
13
Broad. Co., 86 F.3d 858, 860 (9th Cir. 1996) (“To maintain an action for
14
trademark infringement under 15 U.S.C. § 1114, false designation of
15
origin under 15 U.S.C. § 1125(a) and unfair competition under California
16
law, a plaintiff must prove the defendant’s use of the same or similar
17
mark would create a likelihood of consumer confusion.”).
the
public
is
likely
to
be
deceived
or
confused
by
the
18
“The ‘likelihood of confusion’ inquiry generally considers
19
whether a reasonably prudent consumer in the marketplace is likely to be
20
confused as to the origin or source of the goods or services bearing one
21
of the marks or names at issue in the case.” Rearden LLC v. Rearden
22
Commerce, Inc., 683 F.3d 1190, 1209 (9th Cir. 2012). “The confusion must
23
be probable, not simply a possibility. If goods or services are totally
24
unrelated, there is no infringement because confusion is unlikely.”
25
Murray, 86 F.3d at 861 (citation and internal quotation marks omitted).
26
Eight factors, sometimes referred to as the
Sleekcraft factors, guide the inquiry into whether
a defendant’s use of a mark is likely to confuse
consumers: (1) the similarity of the marks; (2) the
strength of the plaintiff’s mark; (3) the proximity
or relatedness of the goods or services; (4) the
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10
1
defendant’s intent in selecting the mark; (5)
evidence of actual confusion; (6) the marketing
channels used; (7) the likelihood of expansion into
other markets; and (8) the degree of care likely to
be exercised by purchasers of the defendant’s
product.
2
3
4
5
Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., 618 F.3d
6
1025, 1030 (9th Cir. 2010) (citing AMF Inc. v. Sleekcraft Boats, 599
7
F.2d 341, 348-49 (9th Cir. 1979)). “This eight-factor analysis is
8
pliant, illustrative rather than exhaustive, and best understood as
9
simply providing helpful guideposts.” Id. (internal quotation marks
10
omitted).
11
Plaintiff does not allege facts from which a reasonable
12
inference can be drawn that consumer confusion is likely to result from
13
Defendants’
14
Clampers trademarks. Concerning Defendants’ alleged use of Plaintiff’s
15
trademarks at the Christmas parade, the 4-SKIN DOINS event, and the
16
Georgetown
17
Defendants used the “trademarks of Plaintiff” for “commercial purposes.”
18
(Compl. ¶¶ 18-20.) These conclusory allegations do not indicate which of
19
its trademarks Defendants used or the manner in which Defendants used
20
them. Further, regarding Defendants’ alleged sale of hot dogs and
21
auction of a motorcycle, Plaintiff does not allege sufficient facts from
22
which a reasonable inference can be drawn that these items are “related”
23
to the pins, shirts, and headgear that Plaintiff allegedly sells. See
24
Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1363 (9th Cir.
25
1985) (“Related goods are those goods which, though not identical, are
26
related in the minds of consumers.”).
27
28
alleged
Founders
For
the
use
of
Day
stated
Plaintiff’s
Celebration,
reasons,
E
Clampus
Plaintiff
Plaintiff’s
Vitus,
alleges
federal
ECV, and
only
that
trademark
infringement claim alleged under 15 U.S.C. § 1114, federal unfair
11
1
competition claim alleged under 15 U.S.C. § 1125(a), and California
2
unfair competition claim alleged under California Business & Professions
3
Code section 17200 are dismissed.
4
2)
California False Advertising Claim
5
Defendants seek dismissal of Plaintiff’s California Business
6
& Professions Code section 17500 false advertising claim, arguing inter
7
alia, “Plaintiff has failed to state a claim under California law or
8
with the specificity required by Twombly.” (Defs.’ Mot. 10:12-13.)
9
Defendant contends: “[section 17500] requires a public statement or a
10
publication that is false or misleading[, and] . . . Plaintiff does not
11
plead any specific advertisement or statement that was false.”
12
10:7-8.
Id. at
13
“California’s False Advertising Law makes it unlawful for any
14
person to ‘induce the public to enter into any obligation’ based on a
15
statement that is ‘untrue or misleading, and which is known, or which by
16
the exercise of reasonable care should be known, to be untrue or
17
misleading.’” Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1161 (9th
18
Cir. 2012) (quoting Cal. Bus. & Prof. Code § 17500). “False advertising
19
under section 17500 . . . is a claim sounding in fraud.” Sensible Foods,
20
LLC v. World Gourmet, Inc., No. 11-2819 SC, 2011 WL 5244716, at *7 (N.D.
21
Cal. Nov. 3, 2011) (citing In re Tobacco II Cases, 46 Cal. 4th 298, 312
22
n.8 (2009)). “Accordingly, it is subject to the heightened pleading
23
requirements for fraud claims under [Rule] 9(b). In order to state a
24
[false advertising] claim, Plaintiff must allege facts identifying
25
specific allegedly false statements, including facts showing how the
26
statements were misleading.” Id.
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28
12
1
Plaintiff alleges as follows in support of its section 17500
2
false advertising claim: “Defendants have further violated [section
3
17500], committing false advertising, by selling goods and services,
4
misrepresenting their identity, and signing up new ‘members’, who think
5
they are joining E Clampus Vitus, but in actuality, are not.” (Compl. ¶
6
41.)
7
required by Rule 9(b) since they do not identify any allegedly false
8
statements or state how any such statement was misleading. Therefore,
9
Plaintiff’s section 17500 false advertising claim is dismissed.
These
conclusory
allegations
10
do
not
provide
the
specificity
IV. CONCLUSION
11
For the stated reasons, Defendants’ anti-SLAPP motion to
12
strike is DENIED and Defendants’ dismissal motion is GRANTED. Plaintiff
13
is granted fourteen (14) days from the date on which this order is filed
14
to file an amended complaint addressing the deficiencies raised in
15
Defendants’ motion. This action may be dismissed with prejudice under
16
Federal Rule of Civil Procedure 41(b) if Plaintiff fails to file an
17
amended complaint within the prescribed time period.
18
Further, Defendants’ request for attorneys’ fees under Rule 11
19
is DENIED, since it was inappropriately raised for the first time in
20
their reply brief.
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Dated:
December 18, 2012
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GARLAND E. BURRELL, JR.
Senior United States District Judge
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