SportPet Designs Inc v. Cat1st Corporation et al

Filing 34

DECISION AND ORDER that Cat1st's first motion to dismiss (ECF No. 10 ) is DENIED as moot. FURTHER ORDERING that Takeuchi's motion to dismiss for lack of personal jurisdiction (ECF No. 28 ) is GRANTED and Takeuchi is DISMISSED. FURTHER OR DERING that Cat1st's motion to dismiss SportPet's remaining patent claims for improper venue and SportPet's remaining trademark, copyright, and deceptive trade practices claims for failure to state a claim upon which relief can be gran ted (ECF No. 12 ) is DENIED with respect to SportPet's claims against Cat1st for infringement of its SPORT PET DESIGNS trademark only and otherwise GRANTED. FURTHER ORDERING that SportPet's motions to strike; in the alternative, for leave to conduct discovery and file a sur-reply brief; and for leave to file a reply brief (ECF Nos. 21 , 23 ) are DENIED. Signed by Judge Lynn Adelman on 3/2/2018. (cc: all counsel)(gc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SPORTPET DESIGNS INC.,
Plaintiff,
v.

Case No. 17-CV-0554

CAT1ST CORPORATION
and JUN TAKEUCHI,
Defendants.

DECISION AND ORDER
SportPet Designs Inc. brings this action against Cat1st Corp. and Jun Takeuchi
alleging patent, trademark, and copyright infringement and violations of Wisconsin’s
Deceptive Trade Practices Act. SportPet’s claims concern the production, importation,
advertisement, and sale of pet products, such as play structures for cats. Cat1st moves
to dismiss for improper venue and failure to state a claim upon which relief can be
granted.1 Fed. R. Civ. P. 12(b)(3), (6). Takeuchi joins Cat1st’s motion and further moves
to dismiss for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). I will address
personal jurisdiction and venue before considering the sufficiency of the complaint.
I. PERSONAL JURISDICTION
Personal jurisdiction primarily concerns “the defendant’s relationship to the forum
State.” Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773, 1779
(2017). There are “two types of personal jurisdiction: ‘general’ (sometimes called ‘allpurpose’) jurisdiction and ‘specific’ (sometimes called ‘case-linked’) jurisdiction.” Id. at
1780. “For an individual, the paradigm forum for the exercise of general jurisdiction is
1

This is Cat1st’s second motion to dismiss. Its first motion to dismiss was mooted when
SportPet timely amended its complaint. I will deny that motion accordingly.

the individual’s domicile . . . .” Id. (quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 924 (2011)). The parties agree that Takeuchi, a resident of Japan,
is not domiciled in Wisconsin so is not subject to general jurisdiction here.
“Specific jurisdiction is very different.” Id. While “[a] court with general jurisdiction
[over a defendant] may hear any claim against that defendant, . . . . for a . . . court to
exercise specific jurisdiction, . . . . there must be ‘an affiliation between the forum and
the underlying controversy,’” usually, “activity or an occurrence that takes place in the
forum State and is therefore subject to the State’s regulation.” Id. (Goodyear, 564 U.S.
at 919). Moreover, a court can only “exercise personal jurisdiction over an out-of-state
defendant if the defendant has ‘certain minimum contacts with [the State] such that the
maintenance of the suit does not offend traditional notions of fair play and substantial
justice.’” Goodyear, 564 U.S. at 923 (alteration in original) (internal quotation marks
omitted) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
The exercise of specific jurisdiction is appropriate where a defendant’s “conduct
and connection with the forum State are such that he should reasonably anticipate
being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)
(quoting Int’l Shoe, 326 U.S. at 316; World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980)). How that rule applies “will vary with the quality and nature of the
defendant’s activity, but it is essential . . . that there be some act by which the defendant
purposefully avails itself of the privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws.” Id. at 474–75 (quoting Hanson v.
Denckla, 357 U.S. 235, 253 (1958)).

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SportPet alleges and Takeuchi concedes that, in 2011, he visited Wisconsin on
behalf of his company D-Culture, then a distributor for SportPet in Japan, and spent 10
days here meeting with SportPet and its CEO, Adam Kellogg. According to Kellogg,
“[Takeuchi] was highly inquisitive during this trip about the details of SportPet’s patents
and trademarks,” and “[a] large majority of this business trip was spent discussing the
intellectual property that forms the basis for the lawsuit here.” Kellogg Decl., ECF No.
30-1, ¶¶ 5–6. SportPet argues that Takeuchi “traveled to Wisconsin to . . . enhance his
knowledge of SportPet’s intellectual property and business dealings” and “then used
this knowledge to manufacture . . . infringing products,” using “Cat1st as a conduit to
import the infringing products to the United States, where they are sold throughout the
United States and in Wisconsin.” Pl.’s Br., ECF No. 30, at 5.
Even accepting the truth of SportPet’s arguments and allegations, it overstates
the significance of Takeuchi’s 2011 business trip. While a defendant’s “physical entry
into the [forum] State . . . is certainly a relevant contact,” Walden v. Fiore, 134 S. Ct.
1115, 1122 (2014), the exercise of specific jurisdiction is only appropriate where a
plaintiff’s asserted claims actually “arise out of” the defendant’s activities in the state,
Burger King, 471 U.S. at 472 (quoting Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414 (1984)). SportPet is not suing Takeuchi for anything he did
during his lone trip to Wisconsin. Instead, it is suing him and his company for infringing
its publicly disclosed intellectual property and using deceptive trade practices based on
the production, importation, advertisement, and sale of goods years later.
SportPet has not shown that any of its claims arise out of Takeuchi’s activities in
Wisconsin. It alleges, “The Defendants manufactured the infringing products in China.”

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Am. Compl., ECF No. 11, ¶ 13. It alleges that they “imported the infringing products into
the United States”—though it does not say into what state or states they imported them.
Id. It then vaguely alleges that “[Takeuchi] and Cat1st are selling the infringing products
online,” id. ¶ 42, including (presumably) to consumers in Wisconsin. However, its
specific allegations and filings concerning the actual advertisement and sale of accused
products only implicate Cat1st. See id. ¶¶ 54–56, ¶¶ 59–61, ¶¶ 64–66, ¶¶ 69–71,
¶¶ 74–76, ¶¶ 79–87 (describing various product listings and attributing them to Cat1st);
see also ECF No. 21-5, at 1 (listing items ordered from Amazon.com as sold by Cat1st).
I cannot exercise specific jurisdiction over Takeuchi based on one contact with
Wisconsin for which he is not being sued, his contacts in the United States but outside
of Wisconsin, or his mere affiliation with Cat1st and its presumed contacts in Wisconsin.
SportPet argues that personal jurisdiction is appropriate here based on Federal
Rule of Civil Procedure 4(k)(2), which provides, “For a claim that arises under federal
law, serving a summons . . . establishes personal jurisdiction over a defendant if . . . the
defendant is not subject to jurisdiction in any state’s courts of general jurisdiction” and
“exercising jurisdiction is consistent with the United States Constitution and laws.”
However, where a defendant lacks the requisite minimum contacts with the forum state,
exercising personal jurisdiction there over that defendant is inconsistent with
constitutional due process. See World-Wide Volkswagen, 444 U.S. at 291.
“The plaintiff bears the burden of establishing personal jurisdiction.” Brook v.
McCormley, 873 F.3d 549, 552 (7th Cir. 2017). SportPet has failed to satisfy that burden
with respect to its claims against Takeuchi. Therefore, I will grant Takeuchi’s motion to
dismiss for lack of personal jurisdiction and dismiss him from this case.

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II. IMPROPER VENUE
Cat1st argues that this district is an improper venue for SportPet’s patent claims
against it. “Any civil action for patent infringement may be brought in the judicial district
where the defendant resides, or where the defendant has committed acts of
infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b).
Cat1st is incorporated, and therefore “resides,” in Nevada, so its residence does not
provide a basis for venue in this district. See TC Heartland LLC v. Kraft Foods Grp.
Brands LLC, 137 S. Ct. 1514, 1521 (2017). Thus, the parties dispute only whether
venue is proper here under the second prong of § 1400(b), specifically focusing on
whether Cat1st has a regular and established place of business in this district.
The Federal Circuit recently defined what constitutes a defendants’ “regular and
established place of business” for patent venue purposes. See In re Cray Inc., 871 F.3d
1355, 1361–64 (Fed. Cir. 2017). First, there must be “a physical, geographical location
in the district from which the business of the defendant is carried out.” Id. at 1362.
Second, the place of business must be “regular,” meaning that it “operates in a
‘steady[,] uniform[,] orderly [, and] methodical’ manner”; “sporadic activity cannot create
venue.” Id. (alterations in original) (quoting 8 The Century Dictionary and Cyclopedia
5050 (William Dwight Whitney & Benjamin E. Smith eds., rev. 1911)). Third, the place of
business must be “established,” meaning that it has “sufficient permanence” and is
“‘stable,’ . . . not transient.” Id. at 1363. Finally, “it must be a place of the defendant,”
meaning that “the defendant must establish or ratify the place of business.” Id.
The court also described relevant considerations in assessing whether a
defendant has a regular and established place of business in the district. These include

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“whether the defendant owns or leases the place, or exercises other attributes of
possession or control over the place”; “whether the defendant conditioned employment
on an employee’s continued residence in the district or the storing of materials at a
place in the district so that they can be distributed or sold from that place”; and the
defendant’s “[m]arketing or advertisements . . . to the extent they indicate that the
defendant itself holds out a place for its business” and “actually engage[s] in business
from that location.” Id. at 1363–64.
SportPet argues that Cat1st has a regular and established place of business in
this district because it sells its products on Amazon.com and distributes them through
the “Fulfillment by Amazon” program. “With Fulfillment by Amazon (FBA), [sellers] store
[their] products in Amazon’s fulfillment centers, and [Amazon] pick[s], pack[s], ship[s],
and provide[s] customer service for these products.” See Fulfillment by Amazon,
Amazon, https://services.amazon.com/fulfillment-by-amazon/benefits.html (last visited
Feb. 26, 2018). Amazon maintains a “fulfillment center”—basically a warehouse and
distribution facility—in Kenosha, Wisconsin, within this district, and SportPet argues that
Cat1st has shipped infringing products there for distribution within the state. Cat1st
concedes that Amazon has used the Kenosha facility to fill orders for its products in the
state but argues that it has never directly shipped any of its products there for
distribution or storage and that venue isn’t proper based solely on where its third-party
distributor has regular and established places of business.
Amazon’s Kenosha facility is a regular and established place of business. By all
accounts, it is a stable, sufficiently permanent, physical location where business
(including some of Cat1st’s business) is carried out in a steady, orderly manner. Yet,

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Cat1st does not own or lease the Kenosha facility, it does not have any discernable
control over it or possessory rights in it, and it does not employ anyone there. Cat1st did
not establish or ratify the place of business as its own but merely accepted that Amazon
might use its Kenosha facility, or any of its more than 100 other fulfillment centers in the
U.S, to store and distribute Cat1st’s products. Moreover, while it seems that participants
in the FBA program can ask Amazon to store their products in specific facilities,
Amazon reserves the right to both limit a seller’s inventory in a given facility and
redistribute inventory between facilities as it sees fit. Thus, whatever else it might be,
Amazon’s Kenosha facility is clearly not Cat1st’s “place of business,” and venue here is
not proper based on that facility’s presence in this district alone.
The parties dispute whether Cat1st has ever directly shipped inventory to the
Kenosha facility. Cat1st insists that it hasn’t, but it has filed inconsistent declarations on
that point. SportPet argues to the contrary, noting that it ordered some of Cat1st’s
products from Amazon and shipment-tracking information shows that the products at
least passed through the Kenosha facility before final delivery. Pursuant to this dispute,
SportPet moves to strike a declaration that Cat1st filed with its reply brief in support of
its motion to dismiss; in the alternative, for leave to conduct discovery regarding venue
and to file a sur-reply opposing Cat1st’s motion to dismiss for improper venue; and for
leave to file a reply brief in support of its motion to strike. I will deny these motions
because even if SportPet is right that Cat1st directly sent inventory to Amazon’s
Kenosha facility for distribution to customers in Wisconsin, that would still be insufficient
to show that Cat1st has a regular and established place of business in the district.

7

This district is an improper venue for SportPet’s patent claims against Cat1st, so
I must either dismiss those claims or transfer them to a district “in which [they] could
have been brought,” if transfer is “in the interest of justice.” 28 U.S.C. § 1406(a).
SportPet has not asked for transfer or shown that transfer would be in the interest of
justice. Therefore, I will grant Cat1st’s motion and dismiss SportPet’s patent claims
against it for improper venue.
III. FAILURE TO STATE A CLAIM
Cat1st argues that SportPet’s complaint fails to state any other cognizable claim
for relief against it. See Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss on that
basis, “a complaint must allege ‘sufficient factual matter to state a claim to relief that is
plausible on its face.’” Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir. 2015)
(quoting Gogos v. AMS Mech. Sys. Inc., 737 F.3d 1170, 1172 (7th Cir. 2013)). “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. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
A. Trademark Infringement
SportPet alleges infringement of two registered trademarks. One is the “POP
OPEN” trademark, Registration No. 2,276,917, for use with collapsible containers for
household use. The other is the “SPORT PET DESIGNS” trademark, Registration No.
3,204,404, for use with pet kennels, beds, and bedding and pet toys.
1. “POP OPEN” Trademark
Cat1st argues that SportPet was not assigned the “POP OPEN” mark until after it
brought this action, so it lacks standing to assert a claim for infringement of that mark.

8

To establish standing, a plaintiff must show that it suffered “an invasion of a legally
protected interest.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Standing is a jurisdictional requirement,
so it “depends on the state of things at the time of the action brought.” Rockwell Int’l
Corp. v. United States, 549 U.S. 457, 473–74 (2007) (quoting Mullan v. Torrance, 22
U.S. (9 Wheat.) 537, 539 (1824)); 13A Charles Alan Wright et al., Federal Practice and
Procedure § 3531 (3d ed.), Westlaw (updated Apr. 2017). SportPet concedes that it did
not have a legally protected interest in the “POP OPEN” mark when it brought this
action, so I must dismiss its claim for infringement of that mark due to lack of standing.
Moreover, even if SportPet now has and could establish standing to assert a
claim against Cat1st for infringement of the “POP OPEN” trademark, that claim would
still fail because nothing in the complaint plausibly suggests that Cat1st has infringed
that mark. As relevant here, a “trademark” is a combination of words used “to identify
and distinguish [a company’s] goods . . . from those manufactured or sold by others and
to indicate the source of the goods.” See 15 U.S.C. § 1127. The owner of a registered
trademark can sue anyone who, without its consent, “use[s] in commerce any
reproduction, counterfeit, copy, or colorable imitation of [the] mark in connection with the
sale, offering for sale, distribution, or advertising of any goods” where “such use is likely
to cause confusion, or to cause mistake, or to deceive.” See id. § 1114(1)(a).
Here, the complaint repeatedly alleges that “Cat1st is violating SportPet’s . . .
Pop Open trademark[]” by “using and advertising the pop open design,” which “is a
protectable mark.” See Am. Compl., ECF No. 11, ¶¶ 55, 60, 65, 70, 75, 80, 96. But the
“POP OPEN” trademark does not protect “the pop open design”—by which I assume

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SportPet means the physical design of its products. Rather, that trademark protects
SportPet’s use of the words “pop open” as a mark—and “any mark which so resembles”
it “as to be likely to cause confusion or mistake or to deceive”—to identify and
distinguish its goods from those manufactured or sold by others (e.g., Cat1st) and to
indicate the source of the goods. See § 1127. Accordingly, while Cat1st’s use of an
infringing mark to advertise its competing goods may constitute trademark infringement,
its use and advertisement of “the pop open design” does not.
The complaint also repeatedly alleges that “Cat1st’s packaging and advertising
copies” language from SportPet’s packaging and advertisements—e.g., “pop open,
sturdy and lightweight, for travel, and convenient for carrying”—“almost word for word.”
Am. Compl., ECF No. 11, ¶¶ 56, 66, 76, 81, 84, 87, 102. But almost word for word isn’t
enough here. While examples of Cat1st’s advertisements and product listings provided
in the complaint show its use of similar terms to those used by SportPet—e.g., “sturdy,”
“lightweight,” “for travel,” and “for your carrying convenience”—none use the specific
phrase “pop open” (or a colorable imitation of it) in any way, much less as a
distinguishing and source-identifying mark. E.g., id. ¶ 54. Thus, I cannot reasonably
infer from the facts as alleged that Cat1st has infringed the “POP OPEN” trademark,
even if SportPet could establish standing to assert such a claim.
2. “SPORT PET DESIGNS” Trademark
SportPet alleges that Cat1st has infringed its “SPORT PET DESIGNS” trademark
by using a logo that is confusingly similar to its own logo to mark its competing goods:

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Am. Compl., ECF No. 11, ¶¶ 37–38. SportPet also offers examples of the parties’ logos
as used on their respective product packaging:

Id. ¶ 64.
Cat1st argues that the complaint’s allegations of similarities between the
companies’ logos are irrelevant in light of the pertinent issue here: whether Cat1st’s
logo infringes SportPet’s trademark, which is a mere word mark of the plain text “Sport
Pet Designs,” not SportPet’s own graphic logo. To the contrary, the central issue in a
trademark dispute is whether “consumers are likely to be confused as to the source” of
the goods at issue “in light of what happens in the marketplace.” Sullivan v. CBS Corp.,
385 F.3d 772, 776–77 (7th Cir. 2004) (quoting Ty, Inc. v. Jones Grp., Inc., 237 F.3d
891, 898 (7th Cir. 2001)). “In other words, context is key.” Epic Sys. Corp. v.
YourCareUniverse, Inc., 244 F. Supp. 3d 878, 893 (W.D. Wis. 2017). Thus, “in
infringement cases, courts generally evaluate a mark as it’s actually used, regardless of
how it’s registered—as a typewritten word, a word in a particular font, and so on.”
Rebecca Tushnet, Registering Disagreement, 130 Harv. L. Rev. 867, 882 (2017).

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Cat1st further argues that the complaint fails to show that it has used its “SPORT
PET JAPAN” logo in an infringing manner, noting that the images in the complaint
demonstrating its uses of that logo are all “from packaging for products sold in Japan
under an exclusive license agreement” between the parties, “where Cat1st lawfully
owns the trademark registration for ‘Sport Pet Japan.’” See Def.’s Br., ECF No. 12-1, at
18. This argument fails because it is based on “matters outside the pleadings” that I
cannot consider on a motion to dismiss under Rule 12(b)(6). See Fed. R. Civ. P. 12(d).
Cat1st also attempts to show that there is no likelihood of confusion by
distinguishing between “Sport Pet Designs” and “Sport Pet Japan” as source-identifying
marks, but its argument is unpersuasive for at least two reasons. First, Cat1st raises
this argument for the first time in its reply brief, and in general, “an argument raised for
the first time in a reply brief is forfeited.” Narducci v. Moore, 572 F.3d 313, 324 (7th Cir.
2009). Second, whether the argument is forfeited, Cat1st contrasts the parties’ marks
“by looking at the two marks side-by-side,” rather than “in light of what happens in the
marketplace,” as required. Sullivan, 385 F.3d at 777 (quoting Ty, Inc., 237 F.3d at 898).
Cat1st has not shown that dismissal of SportPet’s claims for infringement of its
“SPORT PET DESIGNS” trademark is appropriate. Having reviewed the operative
complaint, I find that it contains sufficient factual matter, taken as true, to permit me to
draw the reasonable inference that Cat1st has infringed that trademark. Therefore, I will
deny Cat1st’s motion to dismiss with respect to these trademark infringement claims.
B. Copyright Infringement
SportPet alleges that Cat1st has infringed its “copyright in the product information
contained on its advertising and copying,” Am. Compl. ECF No. 11, ¶ 101, but it

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concedes that it did not apply for or obtain copyright registration before it brought this
suit. Federal law provides in relevant part that “no civil action for infringement of [a]
copyright . . . shall be instituted until preregistration or registration of the copyright claim
has been made.” 17 U.S.C. § 411(a). In other words, “[c]ompliance with the registration
requirements of . . . § 411(a) . . . is a prerequisite to suing for infringement.” BrooksNgwenya v. Indianapolis Pub. Sch., 564 F.3d 804, 806 (7th Cir. 2009). As SportPet did
not comply with these requirements before suing, I must dismiss its copyright claims.
C. Deceptive Trade Practices
Finally, SportPet alleges that Cat1st has violated Wisconsin’s Deceptive Trade
Practices Act (DTPA) by “misrepresenting to the public . . . that [it is] selling SportPet’s
products” and “misrepresent[ing] to [SportPet] that [it] only sold the infringing products in
Japan.” Am. Compl., ECF No. 11, ¶¶ 106–07. The DTPA, a consumer protection
statute, broadly prohibits “untrue, deceptive or misleading” statements “to the public”
made “with intent to sell” or “with intent to induce the public . . . to enter into any contract
or obligation relating to the . . . sale” of goods or services. Wis. Stat. § 100.18(1).
Cat1st

argues

that

the

complaint

fails

to

plausibly

allege

that

its

misrepresentations, if any, caused SportPet any harm compensable under the DTPA,
which provides a private right of action to recover any “pecuniary loss” caused by a
violation of its provisions. § 100.18(11)(b)(2). SportPet alleges that Cat1st’s
misrepresentations to the public caused it to lose sales due to customer confusion and
argues that Cat1st’s misrepresentations about where it was selling its goods allowed it
avoid legal action as it snuck into the U.S. market.

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“Because the purpose of the DTPA includes protecting Wisconsin residents from
untrue, deceptive, or misleading representations made to induce action, . . . proving
causation in th[is] context . . . requires a showing of material inducement.” K & S Tool &
Die Corp. v. Perfection Mach. Sales, Inc., 2007 WI 70, ¶ 35, 301 Wis. 2d 109, 129, 732
N.W.2d 792, 802 (citations omitted). That is, to prevail under the DTPA, a plaintiff must
prove that a defendant’s misrepresentations were “a significant factor contributing to [its]
decision” to buy, rent, or use a “product or item” and that it “sustained a monetary loss
as a result.” See Novell v. Migliaccio, 2008 WI 44, ¶ 49 n.3, 309 Wis. 2d 132, 153 n.3,
749 N.W.2d 544, 553 n.3 (quoting WIS JI–CIVIL 2418 (2011)).
Here, SportPet does not plausibly allege that Cat1st’s misrepresentations caused
it to sustain any pecuniary losses recoverable under the DTPA. Whether SportPet lost
sales because Cat1st’s misrepresentations caused SportPet’s potential customers to
buy products from the wrong company, those misrepresentations did not materially
induce SportPet itself to act, so they did not “cause” SportPet’s lost sales such that
SportPet can sue under the DTPA to recover them. Further, whether Cat1st’s
misrepresentations allowed it to operate in the U.S. market without facing earlier legal
action from SportPet, those misrepresentations did not contribute to SportPet’s decision
to buy anything or otherwise enter into any commercial transactions as a consumer of
goods or services, so it cannot sue under the DTPA to recover for any resulting losses.
Because

SportPet’s

complaint

fails

to

plausibly

allege

that

Cat1st’s

misrepresentations “materially induced (caused) a pecuniary loss” recoverable under
the DTPA, see Novell, 2008 WI 44, ¶ 49, its claims under that statute necessarily fail.
Indeed, to the extent that SportPet sustained losses due to Cat1st’s misconduct, it did

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so as a commercial competitor, not as a consumer, so the DTPA, generally, does not
apply here. Thus, I will grant Cat1st’s motion to dismiss as to SportPet’s DTPA claims.
IV. CONCLUSION
For the reasons discussed above, IT IS ORDERED that Cat1st’s first motion to
dismiss (ECF No. 10) is DENIED as moot.
IT IS FURTHER ORDERED that Takeuchi’s motion to dismiss for lack of
personal jurisdiction (ECF No. 28) is GRANTED and Takeuchi is DISMISSED.
IT IS FURTHER ORDERED that Cat1st’s motion to dismiss SportPet’s remaining
patent claims for improper venue and SportPet’s remaining trademark, copyright, and
deceptive trade practices claims for failure to state a claim upon which relief can be
granted (ECF No. 12) is DENIED with respect to SportPet’s claims against Cat1st for
infringement of its “SPORT PET DESIGNS” trademark only and otherwise GRANTED.
IT IS FURTHER ORDERED that SportPet’s motions to strike; in the alternative,
for leave to conduct discovery and file a sur-reply brief; and for leave to file a reply brief
(ECF Nos. 21, 23) are DENIED.
Dated at Milwaukee, Wisconsin, this 2nd day of March, 2018.

/s Lynn Adelman
LYNN ADELMAN
District Judge

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