Be In, Inc. v. Google Inc. et al

Filing 24

DECLARATION of Ha-Thanh Nguyen in Support of 23 Opposition to Motion to Dismiss filed by Be In, Inc.. (Attachments: # 1 Exhibit Redacted Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Certificate/Proof of Service, # 5 Proposed Order)(Related document(s) 23 ) (Addiego, Joseph) (Filed on 9/25/2012) Modified text on 9/26/2012 [Public Redated Version Pursuant to Judge Koh's 12/21/2011 Standing Order] (dhmS, COURT STAFF).

EXHIBIT C

Case 8:1 0-cv-00828-DOC -RNB Document 42

Filed 03/04/11

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the same causes of action (Docket 20). Defendants filed a motion to dismiss the FAC on October II,
20 I0 (Docket 29), which the Court granted on November 19, 20 I0, while allowing Plaintiff leave to
amend its claims. Order Granting Motion to Dismiss, Nov. 19,2010 ("First Dismissal Order") (Docket
35). Plaintiff filed its Second Amended Complaint ("SAC") on December 13, 2010, which re-alleged
every cause of action asserted in the FAC other than the claim for unfair competition in violation of
federal law. Defendants now move to dismiss the SAC.

II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a
plaintiffs allegations fail to state a claim upon which relief can be granted. Dismissal for failure to state
a claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of facts" in
support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968
(2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957». In order for a complaint
to survive a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the plaintiff pleads
enough facts, taken as true, to allow a court to draw a reasonable inference that the defendant is liable
for the alleged conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that
the defendant is possibly liable, then the complaint must be dismissed. Id. Mere legal conclusions are
not to be accepted as true and do not establish a plausible claim for relief. Id. at 1950. Determining
whether a complaint states a plausible claim for relief will be a context-specific task requiring the court
to draw on its judicial experience and common sense. Id.
Dismissal without leave to amend is appropriate only when the Court is satisfied that the
deficiencies in the complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d
750,758 (9th Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996»; Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000).

III.

DISCUSSION
a.

Trade Dress Claim
1.

Sufficiency of the Allegations

With its first cause of action, Plaintiff asserts a claim for trade dress infringement in
violation of 15 U.S.C. § 1125 ("Lanham Act"). Trade dress refers to the "manner in which the goods or
services are presented to prospective purchasers ..." to indicate the creator of the dress. Restatement
(Third) of Unfair Competition § 16 cmt. a (1995). Trade dress claims involve "the total image of a
product and may include features such as size, shape, color or color combination, texture, graphics, or
even particular sales techniques." Mattei, Inc. v. Walking Mountain Prods., 353 F.3d 792, 808 n. 13
(9th Cir. 2003) (internal citations and quotations omitted). A claim for trade dress infringement
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