Louisiana Pacific Corporation v. James Hardie Building Products, Inc.

Filing 32

Order by Hon. Samuel Conti granting 14 Motion to Dismiss.(sclc1, COURT STAFF) (Filed on 11/14/2012)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 LOUISIANA PACIFIC CORPORATION, Plaintiff, 8 9 United States District Court For the Northern District of California 10 v. 11 JAMES HARDIE BUILDING PRODUCTS, INC., and DOES 1-5, inclusive 12 Defendants. 13 ) Case No. C-12-3433 SC ) ) ORDER GRANTING MOTION TO ) DISMISS ) ) ) ) ) ) ) ) 14 15 Plaintiff Louisiana Pacific Corporation ("Plaintiff") brings 16 this action against Defendant James Hardie Building Products 17 ("Defendant") for, among other things, trademark infringement and 18 tortious interference with economic advantage. 19 ("Compl."). 20 injured Plaintiff and infringed its registered trademarks by paying 21 Google, an internet search engine, to direct consumers to 22 Defendant's website when consumers performed an internet search 23 using Plaintiff's marks. 24 ECF No. 1 The gravamen of the Complaint is that Defendant Defendant now moves to dismiss pursuant to Federal Rule of 25 Civil Procedure 12(b)(6) on the grounds that Plaintiff has failed 26 to identify all of the trademarks that were allegedly infringed. 27 ECF No. 14 ("MTD"). 28 definite statement with respect to allegedly infringed marks In the alternative, Defendant moves for a more 1 pursuant to Federal Rule of Civil Procedure 12(e). Defendant also 2 moves to dismiss Plaintiff's claim for tortious interference on the 3 ground Plaintiff has not alleged the existence of an economic 4 relationship between itself and its prospective clients. 5 motion is fully briefed, ECF Nos. 20 ("Opp'n"), 21 ("Reply"), and 6 appropriate for determination without oral argument, Civ. L.R. 7- 7 1(b). The 8 The Court finds that the Complaint lacks the requisite 9 specificity since it does not identify every trademark which was United States District Court For the Northern District of California 10 allegedly infringed. 11 that it need not "describe every potential . . . infringement of 12 protected material." 13 the point of Defendant's motion. 14 Plaintiff is required to describe every instance of alleged 15 infringement. 16 identify every trademark which was allegedly infringed. 17 5. 18 to provide Defendant with adequate notice. 19 does not suggest that the Court should impose a lower standard.1 20 As pled, the Complaint identifies only three of the allegedly 21 infringed marks and leaves Defendant to guess at the others. 22 is insufficient. Opp'n at 5. This may be true, but it misses Defendant is not arguing that Rather, Defendant is arguing that Plaintiff should See MTD at This is not an overly burdensome requirement and is necessary Plaintiff's authority This Defendant also argues that Plaintiff's claim for tortious 23 24 In its opposition papers, Plaintiff argues interference with economic advantage fails because Plaintiff has 25 1 26 27 28 See Perfect 10, Inc. v. Cybernet Ventures, Inc., 167 F. Supp. 2d 1114, 1121 (C.D. Cal. 2001) (claim for copyright infringement sufficiently pled where complaint identified the relevant copyrights); Facebook, Inc. v. Power Ventures, Inc., C 08-5780 JF (RS), 2009 WL 1299698, at *5 (N.D. Cal. May 11, 2009) (claim for trademark infringement sufficiently pled where complaint identified the allegedly infringed mark). 2 1 not pled facts sufficient to establish that it has an existing 2 relationship with the visitors to its website. 3 law, "[a]n essential element of the tort of interference with 4 prospective business advantage is the existence of a business 5 relationship with which the tortfeasor interfered. 6 need not be a contractual relationship, an existing relationship is 7 required." 8 App. 1994) (internal citations omitted). 9 to a mere 'hope for an economic relationship and a desire for Under California Although this Roth v. Rhodes, 25 Cal. App. 4th 530, 546 (Cal. Ct. "Allegations that amount United States District Court For the Northern District of California 10 future benefit' are inadequate to satisfy the pleading requirements 11 of th[is] element of the tort." 12 Wallpaper Factory, Inc., C 03-05340 JF, 2005 WL 832398, at *8 (N.D. 13 Cal. Mar. 30, 2005) (quoting Blank v. Kirwan, 39 Cal.3d 311, 331 14 (Cal. 1985)). Google Inc. v. Am. Blind & 15 Plaintiff alleges it "has an economic relationship with 16 consumers who visit its website to purchase goods and services and 17 there exists a corresponding probability that those consumers will 18 confer a future economic benefit to [Plaintiff]." 19 Defendant argues that "such unidentified consumers have no existing 20 relationship with Plaintiff." 21 it should not be required to identify these consumers because 22 Defendant has sole possession of their names. 23 Plaintiff contends that Google's search program allows Defendant to 24 specifically identify Internet users who clicked on a particular 25 link and were later converted into customers who eventually 26 purchased goods associated with that link. 27 28 MTD at 7. Compl. ΒΆ 98. Plaintiff responds that Opp'n at 8. Id. Plaintiff's argument lacks merit as it is premised on the unfounded assumption that a person forms a business relationship 3 1 with Plaintiff when he or she enters particular terms in Google's 2 search engine. 3 for Plaintiff through Google will choose to purchase Plaintiff's 4 goods or services at some point in the future; however, such 5 consumers do not have an existing business relationship with 6 Plaintiff merely because they perform an internet search. 7 Plaintiff's "alleged expectation of and prospective sales to these 8 customers . . . does not rise to the level of the requisite promise 9 of future economic advantage" necessary to meet the pleading There is a possibility that consumers who search In sum, United States District Court For the Northern District of California 10 requirements for a claim for tortious interference. 11 WL 832398, at *9 (internal quotations omitted). 12 true since those allegations encompass "'new' customers with whom 13 [Plaintiff] cannot claim any past or present interactions." 14 Google, 2005 This is especially Id. For the reasons set forth above, the Court GRANTS Defendant 15 James Hardie Building Products, Inc.'s Motion to Dismiss. 16 Plaintiff Louisiana Pacific Corporation's Complaint is DISMISSED to 17 the extent that it is predicated on Defendant's alleged 18 infringement of unidentified marks. 19 thirty days' leave to amend its Complaint to specifically identify 20 each and every mark that Defendant allegedly infringed. 21 Additionally, Plaintiff's claim for tortious interference with a 22 prospective business advantage is DISMSISED WITH PREJUDICE. The Court GRANTS Plaintiff 23 24 IT IS SO ORDERED. 25 26 27 Dated: November 14, 2012 UNITED STATES DISTRICT JUDGE 28 4

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