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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LOUISIANA PACIFIC CORPORATION,
Plaintiff,

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United States District Court

For the Northern District of California

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v.

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JAMES HARDIE BUILDING PRODUCTS,
INC., and DOES 1-5, inclusive

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Defendants.

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) Case No. C-12-3433 SC
)
) ORDER GRANTING MOTION TO
) DISMISS
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Plaintiff Louisiana Pacific Corporation ("Plaintiff") brings

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this action against Defendant James Hardie Building Products

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("Defendant") for, among other things, trademark infringement and

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tortious interference with economic advantage.

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("Compl.").

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injured Plaintiff and infringed its registered trademarks by paying

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Google, an internet search engine, to direct consumers to

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Defendant's website when consumers performed an internet search

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using Plaintiff's marks.

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ECF No. 1

The gravamen of the Complaint is that Defendant

Defendant now moves to dismiss pursuant to Federal Rule of

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Civil Procedure 12(b)(6) on the grounds that Plaintiff has failed

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to identify all of the trademarks that were allegedly infringed.

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ECF No. 14 ("MTD").

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definite statement with respect to allegedly infringed marks

In the alternative, Defendant moves for a more

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pursuant to Federal Rule of Civil Procedure 12(e).

Defendant also

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moves to dismiss Plaintiff's claim for tortious interference on the

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ground Plaintiff has not alleged the existence of an economic

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relationship between itself and its prospective clients.

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motion is fully briefed, ECF Nos. 20 ("Opp'n"), 21 ("Reply"), and

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appropriate for determination without oral argument, Civ. L.R. 7-

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1(b).

The

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The Court finds that the Complaint lacks the requisite

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specificity since it does not identify every trademark which was

United States District Court

For the Northern District of California

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allegedly infringed.

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that it need not "describe every potential . . . infringement of

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protected material."

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the point of Defendant's motion.

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Plaintiff is required to describe every instance of alleged

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infringement.

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identify every trademark which was allegedly infringed.

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5.

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to provide Defendant with adequate notice.

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does not suggest that the Court should impose a lower standard.1

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As pled, the Complaint identifies only three of the allegedly

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infringed marks and leaves Defendant to guess at the others.

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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

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In its opposition papers, Plaintiff argues

interference with economic advantage fails because Plaintiff has

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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).
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not pled facts sufficient to establish that it has an existing

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relationship with the visitors to its website.

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law, "[a]n essential element of the tort of interference with

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prospective business advantage is the existence of a business

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relationship with which the tortfeasor interfered.

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need not be a contractual relationship, an existing relationship is

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required."

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App. 1994) (internal citations omitted).

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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

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future benefit' are inadequate to satisfy the pleading requirements

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of th[is] element of the tort."

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Wallpaper Factory, Inc., C 03-05340 JF, 2005 WL 832398, at *8 (N.D.

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Cal. Mar. 30, 2005) (quoting Blank v. Kirwan, 39 Cal.3d 311, 331

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(Cal. 1985)).

Google Inc. v. Am. Blind &

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Plaintiff alleges it "has an economic relationship with

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consumers who visit its website to purchase goods and services and

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there exists a corresponding probability that those consumers will

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confer a future economic benefit to [Plaintiff]."

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Defendant argues that "such unidentified consumers have no existing

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relationship with Plaintiff."

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it should not be required to identify these consumers because

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Defendant has sole possession of their names.

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Plaintiff contends that Google's search program allows Defendant to

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specifically identify Internet users who clicked on a particular

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link and were later converted into customers who eventually

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purchased goods associated with that link.

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MTD at 7.

Compl. ¶ 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

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with Plaintiff when he or she enters particular terms in Google's

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search engine.

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for Plaintiff through Google will choose to purchase Plaintiff's

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goods or services at some point in the future; however, such

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consumers do not have an existing business relationship with

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Plaintiff merely because they perform an internet search.

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Plaintiff's "alleged expectation of and prospective sales to these

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customers . . . does not rise to the level of the requisite promise

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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

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requirements for a claim for tortious interference.

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WL 832398, at *9 (internal quotations omitted).

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true since those allegations encompass "'new' customers with whom

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[Plaintiff] cannot claim any past or present interactions."

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Google, 2005

This is especially

Id.

For the reasons set forth above, the Court GRANTS Defendant

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James Hardie Building Products, Inc.'s Motion to Dismiss.

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Plaintiff Louisiana Pacific Corporation's Complaint is DISMISSED to

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the extent that it is predicated on Defendant's alleged

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infringement of unidentified marks.

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thirty days' leave to amend its Complaint to specifically identify

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each and every mark that Defendant allegedly infringed.

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Additionally, Plaintiff's claim for tortious interference with a

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prospective business advantage is DISMSISED WITH PREJUDICE.

The Court GRANTS Plaintiff

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IT IS SO ORDERED.

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Dated: November 14, 2012
UNITED STATES DISTRICT JUDGE

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