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).

1 Joseph E. Addiego III (CA State Bar No. 169522)
DAVIS WRIGHT TREMAINE LLP
2 505 Montgomery Street, Suite 800
San Francisco, California 94111
3 Telephone: [phone]
Facsimile: [phone]
4 Email: [e-mail]

DAVIS WRIGHT TREMAINE LLP

5 William E. Wallace III (Pro Hac Vice Application Pending)
Stephen M. Nickelsburg (Pro Hac Vice Application Pending)
6 Roni E. Bergoffen (Pro Hac Vice Application Pending)
CLIFFORD CHANCE US LLP
7 2001 K Street, N.W.
Washington, D.C. 20006
8 Telephone: [phone]
Facsimile: [phone]
9 Email: [e-mail]
10 Attorneys for Plaintiff
BE IN, INC., a New York corporation
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IN THE UNITED STATES DISTRICT COURT
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THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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BE IN, INC.,
) Case No. CV12-03373-LHK
)
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Plaintiff,
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) [PROPOSED] ORDER DENYING
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v.
) DEFENDANT'S MOTION TO DISMISS
) BE IN'S THIRD AND FOURTH CAUSES
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GOOGLE, INC., a California corporation,
) OF ACTION
18 RICHARD ROBINSON, and DOES 1 through )
3, inclusive,
) Hearing Date: January 3, 2013
) Hearing Time: 1:30pm
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Defendants.
) Courtroom: 8, 4th Floor
) Judge: Hon. Lucy H. Koh
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)
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On September 4, 2012, Defendant Google Inc. filed a Motion to Dismiss Plaintiff Be In,
Inc.'s third and fourth causes of action pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The motion came on regularly for hearing at the above date, time, and place. Joseph
E. Addiego III of Davis Wright Tremaine LLP and William E. Wallace III of Clifford Chance US
LLP appeared on behalf of Plaintiff Be In Inc.. Colleen Bal and Charles Tait Graves of Wilson
Sonsini Goodrich & Rosati appeared on behalf of Defendant Google, Inc.. After considering the

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Case No. CV12-03373-LHK
[Proposed] Order Denying Motion to Dismiss
DWT 20419088v1 0096269-000001

1 submissions of the parties and argument of counsel and after a hearing on the motion, the Court
2 hereby orders that Defendant's Motion to Dismiss be DENIED.
1. Plaintiff alleges the scope of its trade dress, the element of secondary meaning, and

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4 the element of likelihood of confusion with sufficient particularity to support a plausible inference
5 of trade dress infringement. Accordingly, Defendant's Motion to Dismiss Plaintiff's Fourth Cause
6 of Action is DENIED.
2. Plaintiff satisfied its registration requirement under Section 411(a) of the Copyright

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8 Act prior to filing its lawsuit and alleges its copyright infringement claim with sufficient
9 particularity. Accordingly, Defendant's Motion to Dismiss Plaintiff's Third Cause of Action is

DAVIS WRIGHT TREMAINE LLP

10 DENIED.
3. Defendant Google, Inc. shall file its answer to Plaintiff Be In Inc.’s First Amended

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12 Complaint within fourteen (14) days of the date of the filing of this Order.
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IT IS SO ORDERED.

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15 DATED:
THE HONORABLE LUCY H. KOH
United States District Court Judge

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Case No. CV-03373-LHK
[Proposed] Order Denying Motion to Dismiss
DWT 20419088v1 0096269-000001