Hangingout, Inc. v. Google, Inc.

Filing 23

MOTION to Dismiss for Failure to State a Claim by Google, Inc. (Attachments: # 1 Memo of Points and Authorities)(Caruso, Margaret) (cge).

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP

Margret M. Caruso (Bar No. 243473)
Cheryl A. Galvin (Bar No. 252262)
555 Twin Dolphin Drive, 5th Floor
3 Redwood Shores, California 94065-2139
Telephone: [phone]
4 Facsimile: [phone]
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5 Attorneys for Defendant Google Inc.
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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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13 HANGINOUT, INC.,

Plaintiff,

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vs.

16 GOOGLE INC.,
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Defendant.

CASE NO. 13-CV-2811 AJB NLS
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
GOOGLE’S MOTION TO DISMISS
HANGINOUT’S FIRST AMENDED
COMPLAINT
ORAL ARGUMENT REQUESTED

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Date: April 25, 2014
Time: 2:00 p.m.
Courtroom 3B
Judge: Hon. Anthony J. Battaglia

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Case No. 13-CV-2811 AJB NLS
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF GOOGLE’S MOTION TO DISMISS
HANGINOUT’S FIRST AMENDED COMPLAINT

TABLE OF CONTENTS

1

Page

2
3

4 INTRODUCTION AND BACKGROUND ................................................................ 1
5 LEGAL STANDARD ................................................................................................. 2
6 ARGUMENT ............................................................................................................... 2
7 I.
8

HANGINOUT’S FEDERAL TRADEMARK INFRINGEMENT AND
UNFAIR COMPETITION CLAIMS (COUNTS I & II) MUST BE
DISMISSED ...................................................................................................... 2

9

A.

Hanginout Failed To Plausibly Allege That It Is The Senior User
Of The Marks. ......................................................................................... 3

B.

Hanginout Failed To Plausibly Allege That It Had Sufficient
Market Penetration To Establish Any Common Law Trademark
Rights. ..................................................................................................... 5

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II.

HANGINOUT’S STATUTORY AND COMMON LAW UNFAIR
COMPETITION CLAIMS (COUNT III) MUST BE DISMISSED................. 8

14 CONCLUSION ............................................................................................................ 9
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TABLE OF AUTHORITIES

1
2

Page(s)

Cases

3
4 Ashcroft v. Iqbal,
5
6

556 U.S. 662 (2009) ....................................................................................... 2, 4, 8

Balistreri v. Pacifica Police Dep’t,
901 F.2d 696 (9th Cir. 1990) .................................................................................. 2

7 Bell Atlantic Corp. v. Twombly,
8
9

550 U.S. 544 (2007) ....................................................................................... 2, 4, 8

Cleary v. News Corp.,
30 F.3d 1255 (9th Cir. 1994) .................................................................................. 8

10 Credit One Corp. v. Credit One Financial, Inc.,
11
12

661 F. Supp. 2d 1134 (C.D. Cal. 2009) .............................................................. 6, 7

Future Domain Corp. v. Trantor Sys. Ltd., Civ. No. C 93 0812,
1993 WL 270522 (N.D. Cal. May 3, 1993) ................................................... 3, 4, 5

13 Garden of Life, Inc. v. Letzer,
14
15

318 F. Supp. 2d 946 (C.D. Cal. 2004) .................................................................... 4

Glow Indus., Inc. v. Lopez,
252 F. Supp. 2d 962 (C.D. Cal. 2002) ............................................................ 3, 6, 7

16 Herb Reed Enters, LLC v. Florida Entertainment Mgmt., Inc.,
17
18

736 F.3d 1239 (9th Cir. 2013) ................................................................................ 2

Optimal Pets, Inc. v. Nutri-Vet, LLC,
877 F. Supp. 2d 953 (C.D. Cal. 2012) .................................................... 2, 5, 6, 7, 8

19 Schussler v. Webster, Civ. No. 07cv2016,
20
21

2008 WL 4350256 (S.D. Cal. Sept. 22, 2008) ....................................................... 5

Seltzer v. Green Day, Inc.,
725 F.3d 1170 (9th Cir. 2013) ................................................................................ 5

22 Wells Fargo & Co. v. Stagecoach Props., Inc.,
23
24

685 F.2d 302 (9th Cir. 1982) .................................................................................. 4
Statutes

25 15 U.S.C. § 1125(a) ..................................................................................................... 2
26 California Business & Professions Code § 17200 ....................................................... 8
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1

INTRODUCTION AND BACKGROUND

2

The First Amended Complaint (“the Complaint”) filed by plaintiff Hanginout,

3 Inc. (“Hanginout”) against defendant Google Inc. (“Google”) on January 28, 2014
4 (the “Complaint”) still fails to state any claims for which relief can be granted.
5 Hanginout’s claims for trademark infringement and violations of federal and state
6 law unfair competition fail because Hanginout does not plead factual allegations
7 sufficient to support that it is the senior user with sufficient market penetration to
8 claim priority over Google with respect to its unregistered HANGINOUT marks.
9 Because Hanginout fails to state sufficient facts to support that it is the senior user
10 of a valid trademark, the Complaint must be dismissed in its entirety.
11

According to Hanginout’s Complaint (Dkt. No. 14), it developed an

12 interactive video-response platform under the brand HANGINOUT.
13 ¶ 12.)

(Compl.

Hanginout filed U.S. trademark applications for the HANGINOUT word

14 mark and the HANGINOUT design mark (“the HANGINOUT marks”) on July 12,
15 2012.

(Id. at ¶¶ 21-22.) The applications are still pending. (Id. at ¶ 23.) The

16 applications claim a first use date of June 6, 2012 for both marks.
17 Attachments A, B.)

(Id. at

But after Google moved to dismiss Hanginout’s original

18 complaint and pointed out that Google first used HANGOUTS in June of 2011, a
19 year earlier, Hanginout changed its story and now alleges that it “commercialized”
20 its products earlier.

(Compl. ¶ 9.) But the Complaint does not allege any facts

21 showing the nature and extent of Hanginout’s marketing of its products bearing the
22 HANGINOUT marks, the volume of actual paying customers, or where the
23 customers are located for any time, much less before Google’s first public
24 announcement of use, which Hanginout admits was on June 28, 2011 (Compl. ¶ 25).
25 The most concrete allegation Hanginout makes concerning market penetration is
26 that “[b]y May of 2011, over 200 customers had actually registered for and used
27 Version 1.0 of the HANGINOUT Q&A platform.

(Compl. ¶ 20.) This allegation

28 is insufficient to state a claim that Hanginout had priority in its marks prior to
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1 Google’s first use in June 2011, and Hanginout’s complaint should be dismissed.
2 See, e.g., Optimal Pets, Inc. v. Nutri-Vet, LLC, 877 F. Supp. 2d 953, 962-964 (C.D.
3 Cal. 2012).
4

LEGAL STANDARD

5

A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of

6 Civil Procedure “based on the lack of a cognizable legal theory or the absence of
7 sufficient facts alleged under a cognizable legal theory.”
8 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

Balistreri v. Pacifica

“Factual allegations must be

9 enough to raise a right to relief above the speculative level.”

Bell Atlantic Corp. v.

10 Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citation omitted).
11 Mere “labels and conclusions, and a formulaic recitation of the elements of a cause
12 of action will not do.”

Id. Rather, “[t]o survive a motion to dismiss, a complaint

13 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
14 is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis

15 added) (quoting Twombly, 550 U.S. at 556, 570).

“A claim has facial plausibility

16 when the plaintiff pleads factual content that allows the court to draw the
17 reasonable inference that the defendant is liable for the misconduct alleged.”
18

Id.

ARGUMENT

19 I.
20

HANGINOUT’S FEDERAL TRADEMARK INFRINGEMENT AND
UNFAIR COMPETITION CLAIMS (COUNTS I & II) MUST BE
DISMISSED

21

To state a trademark-based claim under 15 U.S.C. § 1125(a), a plaintiff must

22 allege that it owns a valid, protectable trademark, and that the defendant is using a
23 mark confusingly similar to the plaintiff’s mark in commerce.

See, e.g., Herb Reed

24 Enters, LLC v. Florida Entm’t Mgmt., Inc., 736 F. 3d 1239, 1247 (9th Cir. 2013).
25 Because Hanginout does not have registered trademarks, it must demonstrate that it
26 had acquired common law trademark rights before June 2011 in the geographical
27 area where Google used its HANGOUTS mark and that it continued to use the mark
28 in that area.

E.g., Optimal Pets, 877 F. Supp. 2d at 958. “To establish

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1 enforceable common law trademark rights in a geographical area, a plaintiff must
2 prove that, in that area, (1) it is the senior user of the mark, and (2) it has established
3 legally sufficient market penetration.”

Id. at 959. Hanginout fails to do this, as it

4 does not sufficiently allege facts that, if true, would support a finding that it is the
5 senior user of the HANGINOUT mark with adequate market penetration to have
6 gained common law trademark rights before Google’s first use of HANGOUTS.

A.

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Seniority of use can only be established by commercial usage; “it is not

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enough to have invented the mark first or even to have registered it first.” Glow
Indus., Inc. v. Lopez, 252 F. Supp. 2d 962, 980-81 (C.D. Cal. 2002). Not just any
use is sufficient; courts look to the totality of a party’s actions to determine whether
the use is sufficient to establish priority. E.g., Future Domain Corp. v. Trantor
Sys. Ltd., Civ. No. C 93 0812, 1993 WL 270522, at *6 (N.D. Cal. May 3, 1993).
As a threshold matter, Attachments A and B to the Complaint, which

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Hanginout Failed To Plausibly Allege That It Is The Senior User
Of The Marks.

Hanginout represents are the trademark applications for the HANGINOUT marks,
represent under oath that the date of first use of the marks is June 6, 2012. (Compl.
¶ 22, Attachments A, B.)1 However, after Google moved to dismiss Hanginout’s
original complaint and pointed out that this date was not early enough to establish

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It is unclear whether the date of first use is even as early as June 6, 2012.

The specimens that Hanginout submitted to the USPTO contain a copyright date of

22 2013—and feature an image of the iPhone 5S, which was not released until
23 September 2013.
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(Dkt. 9-2, January 10, 2014 Declaration of Margret M. Caruso
(“Caruso Decl.”) ¶ 2; Dkt. 9-3, Ex. 1 to Caruso Decl.,
http://www.apple.com/pr/library/2013/09/16iPhone-5s-iPhone-5c-Arrive-on-FridaySeptember-20.html.) Thus, nothing on the face of the specimens, which are
incorporated in the Complaint by reference as part of Hanginout’s trademark
application, reflects that the HANGINOUT mark was used in commerce for the
services identified as early as July 2012. This calls into question not only the first
use date, but also the veracity of Hanginout’s representations to the USPTO.

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1 priority (Dkt. 9 at n.1), Hanginout amended its Complaint, and appears now to claim
2 a first use date of at least May 2011—more than a year earlier than the date it
3 represented under oath to the USPTO was its first use date.

(Compare id. with

4 Compl. ¶ 20, which alleges that over 200 customers had actually registered for and
5 used the HANGINOUT platform by May 2011).

Because Hanginout submitted a

6 sworn statement to the USPTO regarding its date of first use of the marks anywhere
7 and also the first date of the use of the marks in commerce, it must prove an earlier
8 date by clear and convincing evidence.

Wells Fargo & Co. v. Stagecoach Props.,

9 Inc., 685 F.2d 302, 304 n.1 (9th Cir. 1982).

The Complaint offers no explanation

10 for the change in date.
11

Even assuming Hanginout would be able to prove its allegations relating to

12 pre-June 2011 use by clear and convincing evidence, the Complaint fails to allege
13 any facts from which it would be plausible to conclude that Hanginout’s use in
14 commerce was sufficient to give it seniority over Google’s nationwide use of
15 HANGOUTS.

Cf. Iqbal, 556 U.S. at 678 (requiring complaint to be “‘plausible on

16 its face’”) (quoting Twombly, 550 U.S. at 570).

For example, Future Domain held

17 the actions of a company that advertised its product at the computer industry’s
18 largest U.S. trade show, where up to 143,000 people may have seen the mark,
19 distributed 3,500 information fliers and 100 corporate brochures containing the
20 mark, obtained 2,400 completed inquiry forms, and received and fulfilled over 200
21 requests for preliminary versions of the product “did not create a sufficient
22 association in the public mind between the mark and [the company]” to establish
23 seniority of use.

1993 WL 270522 at **1- 7. See also Garden of Life, Inc. v.

24 Letzer, 318 F. Supp. 2d 946, 957-960 (C.D. Cal. 2004).

Hanginout alleges far less

25 in its Complaint.
26

The Complaint’s bare allegation that “Hanginout adopted the HANGINOUT

27 logo and word mark in connection with its social media services as early as
28 November 2008” (Compl. ¶ 11) provides no basis for Hanginout to claim a use of
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1 commerce at that time because “[a]n intent to eventually commercially exploit an
2 idea is not sufficient to confer trademark rights or meet the ‘in commerce’
3 requirement.”

Schussler v. Webster, Civ. No. 07cv2016 IEG, 2008 WL 4350256,

4 at * 4 (S.D. Cal. Sept. 22, 2008), amended and vacated in part on other grounds on
5 reconsideration.

Thus, “[t]he fact that a party first conceived the mark and

6 discussed it with others in or outside of the organization in anticipation of and in
7 preparation for a subsequent use in trade does not constitute an ‘open’ use and
8 therefore does not establish priority as of the date of the conception or of these
9 discussions.”
10

Future Domain, 1993 WL 270522 at *6 (citation omitted).

The Complaint’s additional allegations about filming a promotional video and

11 uploading a Facebook page in March 2010 (Compl. ¶¶ 16-17) give no indication
12 that either of these activities even resulted in public awareness of the mark, much
13 less that “an appropriate segment of the public mind” came to identify it with
14 Hanginout’s goods or services.
15 (9th Cir. 2013).

Seltzer v. Green Day, Inc., 725 F.3d 1170, 1180

As in Future Domain, there is no allegation of how many people

16 actually saw or noticed these promotional efforts.

1993 WL 270522 at *7.

17 Hanginout’s allegations, which do not even rise to the level that courts have deemed
18 insufficient, fail to plausibly allege seniority of use.

B.

20

Hanginout Failed To Plausibly Allege That It Had Sufficient
Market Penetration To Establish Any Common Law Trademark
Rights.

21

“[I]n the absence of federal registration, both a senior and junior user would

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22 have the right to expand into unoccupied territory and establish customer
23 recognition in that territory.”

Optimal Pets, 877 F. Supp. 2d at 958-59. Because

24 Hanginout does not have registered trademarks, it must demonstrate that it had
25 acquired common law trademark rights through legally sufficient market penetration
26 in a geographical area before June 2011.
27 958.

E.g., Optimal Pets, 877 F. Supp. 2d at

Market penetration is determined by examining information such as the

28 trademark user’s “volume of sales and growth trends, the number of persons buying
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1 the trademarked product in relation to the number of potential purchasers, and the
2 amount of advertising.”
3

Glow, 252 F. Supp. 2d at 983.

The market penetration standard is not easily satisfied. For example, a

4 company that sold a total of $35,000 in pet supplies to pet professionals in 16 states,
5 maintained a website, and spent more than $100,000 in advertising, including
6 national magazine advertising, failed to establish sufficient market penetration
7 nationwide.

Optimal Pets, 877 F. Supp. 2d at 962-964 (granting defendant

8 judgment as a matter of law following jury trial).

Similarly, “GLOW” beauty

9 products had not achieved sufficient market penetration to establish common law
10 rights in any specific geographic area even though they were mentioned in InStyle
11 and Los Angeles magazines and had been sold to customers in all fifty states,
12 including at the company’s Los Angeles retail store, at Bergdorf Goodman in New
13 York City, at Nordstrom stores and Ritz Carlton Hotels, at retail stores in eleven
14 states, on a national beauty website, and through the company’s own website.
15 Glow, 252 F. Supp. 2d at 983-986.

And a company that maintained business

16 licenses in two states, one where there had never been any offices and another where
17 the office had since closed, with no evidence of recent actual sales in those states,
18 did not establish common law trademark rights in those two states.

Credit One

19 Corp. v. Credit One Financial, Inc., 661 F. Supp. 2d 1134, 1138 (C.D. Cal. 2009).
20

The Complaint’s factual allegations fail to rise even to the level of activities

21 found insufficient in these cases to establish seniority and market penetration.

The

22 only specific factual allegation in the Complaint relating to Hanginout’s alleged use
23 of the HANGINOUT mark in connection with “consumers” before June 2011 is that
24 an unspecified number of “consumers began registering HANGINOUT profiles and
25 endorsing the product on social-media platforms such as Twitter and Facebook,”
26 that it “aggressively market[ed] its platforms through various social-media outlets,”
27 with no further identification of the social media outlets or the success of its efforts,
28 and that “over 200 customers had registered for and used the HANGINOUT Q&A
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1 platform by May 2011,” with no identification of the volume of “customers” from
2 geographic areas or whether they were independent consumers, as opposed to the
3 company’s employees, officers, or investors, or their personal friends.
4 ¶¶ 18-20.)

(Compl.

Hanginout does not even allege that the HANGINOUT Q&A platform

5 was branded under the HANGINOUT marks at that time.
6

Hanginouts’ factual allegations are insufficient to establish a plausible claim

7 for common law trademark rights in any single geographic location, let alone
8 nationwide.

Hanginout pleads no specific facts regarding its volume of sales and

9 growth trends, the number of persons buying the trademarked product in relation to
10 the number of potential purchasers, the amount of its advertising prior to June 2011,
11 or where the 200 alleged users were located.

See Glow, 252 F. Supp. 2d at 984-85

12 (denying preliminary injunction where plaintiff provided “little information that
13 would assist the court in quantifying market penetration, sales levels, growth trends,
14 or the number of people who purchased the company’s products in relation to the
15 number of potential customers”).

Even 200 users in one location, however, would

16 be de minimus use insufficient to show market penetration in that geographic area.
17 See, e.g., Optimal Pets, 877 F. Supp. 2d at 962.
18

As Hanginout has not successfully alleged market penetration in any single

19 geographic area, it also cannot allege sufficient market penetration nationwide.
20 E.g., Optimal Pets, 877 F. Supp. 2d at 962-964; Glow, 252 F. Supp. 2d at 983-986.
21 Nor can Hanginout plausibly argue that the entire country was within the natural
22 zone of expansion, which is “narrowly construed.”

Credit One Corp. v. Credit

23 One Fin., Inc., 661 F. Supp. 2d 1134, 1138 (C.D. Cal. 2009).

“Because [the

24 plaintiff] has not adequately demonstrated the extent of its current market
25 penetration, a zone of expansion that encompasses the entire nation is about as large
26 a ‘leap’ as it is possible to imagine.”

Glow, 252 F. Supp. 2d at 986. Indeed, were

27 the law otherwise, anyone with 200 Facebook “friends” or Twitter “followers” could
28 instantaneously acquire nationwide priority for a mark.
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1

Furthermore, Hanginout alleges no use it made of its mark after May 2011

2 and fails to allege any facts to show that it has continuously used its alleged mark in
3 any geographic area during the relevant timeframe.
4 trademark right there must be a continuing use.”
5 959.

“To maintain a common law

Optimal Pets, 877 F. Supp. 2d at

Hanginout therefore cannot establish common law trademark rights to the

6 HANGINOUT mark.
7

Accordingly, the Complaint’s factual content fails to “allow[] the court to

8 draw the reasonable inference that the defendant is liable for the misconduct
9 alleged.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Because

10 Hanginout has failed to sufficiently plead factual allegations to support its claim of
11 senior use and market penetration, its unsupported conclusions that “HANGINOUT
12 marks have achieved market penetration throughout the United States and, at a
13 minimum, in California” (Compl. ¶ 40) and “[i]ts market penetration was prior to
14 Google’s first use of the infringing HANGOUTS mark” (Compl. ¶ 41) must be
15 disregarded.

Twombly, 550 U.S. at 555 (“[L]abels and conclusions, and a

16 formulaic recitation of the elements of a cause of action will not do.”).

Therefore,

17 Hanginout’s federal trademark infringement and unfair competition claims must be
18 dismissed.
19 II.
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HANGINOUT’S STATUTORY AND COMMON LAW UNFAIR
COMPETITION CLAIMS (COUNT III) MUST BE DISMISSED
Actions pursuant to California Business & Professions Code § 17200 and

California common law claims of unfair competition are “substantially congruent”
to claims made under the Lanham Act and rise and fall with those claims. E.g.,
Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir. 1994). Hanginout’s
conclusory allegations in support of its § 17200 and state common law unfair
competition claims provide no further factual information than what it pleads for its
federal Lanham Act claims. Accordingly, its statutory and common law unfair
competition claims fail for the same reasons as its federal Lanham Act claims.
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1
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CONCLUSION
For the foregoing reasons, Hanginout’s Complaint should be dismissed in its

3 entirety.
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DATED: February 28, 2014

Respectfully submitted,
/s/ Margret M. Caruso
Margret M. Caruso
Cheryl A. Galvin
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
Attorneys for Defendant Google Inc.

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1
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CERTIFICATE OF SERVICE
I hereby certify that on February 28, 2014, I will cause to be filed the

3 foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
4 OF GOOGLE’S MOTION TO DISMISS HANGINOUT’S FIRST AMENDED
5 COMPLAINT with the Clerk of the Court using the CM/ECF system, which will
6 then send a notification of such filing to counsel for Plaintiff Hanginout, Inc.
7
8

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

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10
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By /s/ Margret M. Caruso
Margret M. Caruso
Attorneys for Defendant Google Inc.
[e-mail]

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