AMDL Collections, Inc. v. Coast to Coast Business Management, Inc.

Filing 24

MEMORANDUM AND OPINION entered: The motion to dismiss is granted. (Docket Entry No. 12). AMDL may file an amended complaint no later than May 24, 2024. (Signed by Judge Lee H Rosenthal) Parties notified. (lle4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
AMDL COLLECTIONS, INC.,
Plaintiff,
v.
COAST TO COAST BUSINESS
MANAGEMENT, INC., d/b/a TEXAS
TOY DISTRIBUTION,
Defendant.

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May 08, 2024
Nathan Ochsner, Clerk

CIVIL ACTION NO. H-23-4146

MEMORANDUM AND OPINION
This is a battle over stuffed animals. The court is fortunately not required to opine on the
aesthetic qualities of the toys, or their likely ability to provide comfort to small children. The issue
is copyright infringement.
AMDL Collections, Inc. makes and sells stuffed animals, known as plush toys. So does
Texas Toy Distribution. AMDL alleges that some of the toys Texas Toy Distribution makes and
sells so closely resemble toys sold by AMDL as to infringe AMDL’s copyrights. The court
dismisses AMDL’s complaint, with leave to amend, because AMDL has not alleged the specific
aspects of its plush toys that have copyright protection and were improperly copied by Texas Toy
Distribution.
I.

Background
AMDL Collections, Inc. designs, distributes, and manufactures plush toys under the brand

name Adore Plush Company. (Docket Entry No. 1 at ¶¶ 9–10). At issue are four plush animal
toys “created and authored” by AMDL that can be purchased “through various channels of trade
including retail sales on online marketplaces such as Amazon and wholesale distribution to gift

shops, aquariums, zoos, and elsewhere.”

(Id. at ¶ 11).

AMDL alleges that Texas Toy

Distribution—which sells plush toys through its website, online wholesale marketplaces, and a
brick-and-mortar store in Texas—sells plush toys that are “virtually identical” to the four plush
toys created by AMDL. (Id. at ¶¶ 34, 39).
A.

The Bearded Dragons

In 2017, AMDL “created[,] [] authored[,]” and began selling a dragon plush toy named
“Pogo the Bearded Dragon.” (Id. at ¶¶ 12–13).

(Id. at ¶ 13).
AMDL alleges that Pogo “is the subject of U.S. Copyright Registration No.
VA0002291917.” (Id. at ¶ 15). As proof of its copyright, AMDL attached to its complaint a
screenshot from the online public catalog of the United States Copyright Office reflecting a
copyright registration entitled “Bearded Dragon Plush Toy.” (Id. at 1-1 at 2).
AMDL alleges that, in 2022, Texas Toy Distribution began selling a Pogo “replica” under
the name “Bearded Dragon 24" Plush Stuffed Animal.” (Docket Entry No. 1 at ¶ 35). It is shown
below.
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(Id.).
B.

The Bees

In 2015, AMDL “created and authored” a bee plush toy named “Buzzy the Honey Bee.”
(Id. at ¶¶ 17–18). AMDL began selling Buzzy in 2016. (Id. at ¶ 17).

(Id. at ¶ 18).
AMDL alleges that Buzzy “is the subject of U.S. Copyright Registration No.
VA0002298646.” (Id. at ¶ 20). As proof of its copyright, AMDL attached to its complaint a

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screenshot from the online public catalog of the United States Copyright Office reflecting a
copyright registration entitled “Bee Plush Toy.” (Docket Entry No. 1-2 at 2).
AMDL alleges that, in 2022, Texas Toy Distribution began selling a Buzzy “replica” by
the name ““Bee 14" Plush Stuffed Animal.” (Id. at ¶ 41).

(Id.).
C.

The Dinosaurs

In 2018, AMDL “created and authored” a dinosaur plush toy named “Moby the
Mosasaurus Dinosaur.” (Id. at ¶ 23). AMDL began selling Moby in 2019. (Id. at ¶ 22).

AMDL alleges that Moby “is the subject of U.S. Copyright Registration No.
VA0002308149.” (Id. at ¶ 25). As proof of its copyright, AMDL attached to its complaint a
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screenshot from the online public catalog of the United States Copyright Office reflecting a
copyright registration entitled “Dinosaur Plush Toy.” (Id. at 1-3 at 2).
AMDL alleges that, in 2022, Texas Toy Distribution began selling a Moby “replica” by
the name of “Mosasaur 19.7" Dinosaur Plush Stuffed Animal.” (Id. at ¶ 47).

D.

The Gecko Lizards

In 2018, AMDL “created and authored” a gecko lizard plush toy named “Leo the Leopard
Gecko.” (Id. at ¶¶ 27–28). AMDL began selling Leo in 2019. (Id. at ¶ 27).

(Id. at ¶ 28).
AMDL alleges that Leo “is the subject of U.S. Copyright Registration No.
VA0002302841.” (Id. at ¶ 30). As proof of its copyright, AMDL attached to its complaint a
screenshot from the online public catalog of the United States Copyright Office reflecting a
copyright registration entitled “Gecko Plush Toy.” (Docket Entry No. 1-4 at 2).
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AMDL alleges that, in 2022, Texas Toy Distribution began selling a Leo “replica” under
the name “Gila Monster 24.5" Plush Stuffed Animal.” (Id. at ¶ 53).

(Id.).
E.

AMDL’s Infringement Allegations

In September 2023, counsel for AMDL sent a cease-and-desist letter to Texas Toy
Distribution, demanding that Texas Toy Distribution destroy and cease selling the challenged toys.
(Id. at ¶ 59). Texas Toy Distribution continued selling the toys. (Id. at ¶ 60). AMDL filed this
suit in November 2023.
AMDL admits that each of the challenged toys “has a different colorway” than AMDL’s
corresponding toys. (Id. at ¶¶ 38, 44, 50, 56). However, AMDL contends that the challenged toys
are “virtually identical” to, and have “the same copyrighted design, shape, and features,” of their
AMDL counterparts. (Id. at ¶¶ 38, 39, 44, 45, 50, 51, 56, 57). For each challenged toy, AMDL
alleges that Texas Toy Distribution “intentionally and willfully used material protected by”
AMDL’s copyright registrations “to capitalize off the good will and creative works of AMDL.”
(Id. at ¶¶ 40, 46, 52, 58).
AMDL alleges copyright infringement under 17 U.S.C. § 501. (Id. at ¶¶ 61–83). AMDL
seeks declaratory and injunctive relief, damages, and attorneys’ fees. (Id. at 17–18).

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Texas Toy Distribution has moved to dismiss AMDL’s complaint under Federal Rule of
Civil Procedure 12(b)(6). (Docket Entry No. 12). AMDL has responded, (Docket Entry No. 14),
and Texas Toy Distribution has replied, (Docket Entry No. 19).
Based on the pleadings, the briefing, and the applicable law, the motion to dismiss is
granted. The reasons are set out below.
II.

The Legal Standard
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a),
which requires “a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
at 556).
“A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be
enough to raise a right to relief above the speculative level.’” Cicalese v. Univ. Tex. Med. Branch,
924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “Conversely, when the
allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic

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deficiency should be exposed at the point of minimum expenditure of time and money by the
parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (alterations omitted)
(quoting Twombly, 550 U.S. at 558).
A court reviewing a motion to dismiss under Rule 12(b)(6) may consider “(1) the facts set
forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial
notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc. v.
Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).
III.

Analysis
Copyright law distinguishes “ideas” from “expression.” “[N]o author may copyright facts

or ideas. The copyright is limited to those aspects of the work—termed ‘expression’—that display
the stamp of the author’s originality.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.
539, 547, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (internal citation omitted). “[I]deas, first
expressed by nature, are the common heritage of humankind, and no artist may use copyright law
to prevent others from depicting them.” Satava v. Lowry, 323 F.3d 805, 813 (9th Cir. 2003). For
example, “an eagle with talons extended to snatch a mouse; a grizzly bear clutching a salmon
between its teeth; a butterfly emerging from its cocoon; a wolf howling at the full moon; [and] a
jellyfish swimming through tropical waters” are not entitled to protection. Id.
Depictions of animals, like the stuffed creatures here, necessarily depict ideas “first
expressed by nature.” Ideas linked by nature to the physiology of animals—like the inflatable skin
flap under the jaw of a bearded dragon, the spiracles and bulbous abdomen of a honeybee, the long
dorsal crest and hinge-jaw of an aquatic dinosaur, or the triangular head and stout tail of a gila
monster—are entitled to no protection. See id. at 811; Aliotti v. R. Dakin & Co., 831 F.2d 898,
901 (9th Cir. 1987). To the extent AMDL’s plush toys contribute some original expression to

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these natural ideas, those expressions may be protected. For example, “[a]n artist may vary the
pose, attitude, gesture, muscle structure, facial expression, coat, or texture of animal.” Satava, 323
F.3d at 813. If these variations are distinct from the “physiognomy of [the animals] [and] from
the nature of stuffed animals,” they are entitled to protection. Aliotti, 831 F.2d at 901.1
The thrust of Texas Toy Distribution’s motion to dismiss is that AMDL’s complaint does
not identify which aspects of its plush toys are original expressions, entitled to copyright
protection, rather than just natural ideas, a part of the “common heritage of humankind.”
Translating this point into the two-element infringement framework, Texas Toy Distribution
argues that AMDL has not plausibly alleged that (1) it owns valid copyrights on the plush toys, or
(2) the protectable elements that Texas Toy Distribution has copied.
The court agrees with Texas Toy Distribution that AMDL’s complaint does not identify
protectable elements of its plush toys that have plausibly been copied by Texas Toy Distribution.
AMDL has not produced its copyright applications or certificates issued by the United States
Copyright Office, so the court cannot determine which aspects of its plush toys are covered by its
copyrights. AMDL only generally alleges that the challenged toys have “the same copyrighted
design, shape, and features” as AMDL’s toys. This allegation is vague and conclusory and does

The Ninth Circuit has distinguished between subject matter with “a wide range of expression (for
example, there are gazillions of ways to make an aliens-attack movie),” and “a narrow range of expression
(for example, there are only so many ways to paint a red bouncy ball on blank canvas) . . . .” Mattel, Inc.
v. MGA Entm’t, Inc., 616 F.3d 904, 914 (9th Cir. 2010), as amended on denial of reh’g (Oct. 21, 2010).
The Ninth Circuit has given the former “broad” copyright protection, under which “a work will infringe if
it’s ‘substantially similar’ to the copyrighted work.” Id. And it has given the latter “thin” copyright
protection, triggering infringement only when the works are “virtually identical.” Id. In at least one case,
this court has endorsed the Ninth Circuit’s approach. See Lennar Homes of Tex. Sales & Mktg., Ltd. v.
Perry Homes, LLC, 117 F. Supp. 3d 913, 935 (S.D. Tex. 2015), judgment entered sub nom. Lennar Homes
of Tex. Sales & Mktg. Ltd v. Perry Homes, LLC, No. CIV.A. H-14-1094, 2015 WL 4638504 (S.D. Tex.
July 24, 2015). At this stage, and for disposing of the present motion, it is unnecessary to decide whether
and how the Ninth Circuit’s broad-thin dichotomy applies.
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not support a reasonable inference that AMDL’s toys feature protectable expressions that were
copied by Texas Toy Distribution.
ADML’s complaint is dismissed. AMDL is granted leave to attempt to cure the pleading
deficiencies identified in this opinion with an amended complaint.
IV.

Conclusion
The motion to dismiss is granted. (Docket Entry No. 12). AMDL may file an amended

complaint no later than May 24, 2024.

SIGNED on May 8, 2024, at Houston, Texas.

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Lee H. Rosenthal
United States District Judge

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