Free Kick Master LLC v. Apple Inc.

140 F. Supp. 3d 975, 2015 U.S. Dist. LEXIS 141993, 2015 WL 6123058
CourtDistrict Court, N.D. California
DecidedOctober 19, 2015
DocketCase No. 15-cv-03403-PJH
StatusPublished
Cited by7 cases

This text of 140 F. Supp. 3d 975 (Free Kick Master LLC v. Apple Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Free Kick Master LLC v. Apple Inc., 140 F. Supp. 3d 975, 2015 U.S. Dist. LEXIS 141993, 2015 WL 6123058 (N.D. Cal. 2015).

Opinion

ORDER GRANTING MOTIONS TO DISMISS

PHYLLIS J. HAMILTON, United States District Judge'

Defendants’ motions to dismiss the second amended complaint (“SAC”) for failure to state a claim came on for hearing before this court on September 30, 2015. Plaintiff Free Kick'Master LLC (“Free Kick Master”) appeared by its counsel Val Schu-rowliew, Stanley Josselson, and Eugene Alkana; defendants Amazon.com, Inc. (“Amazon”) añd Google, Inc. (“Google”)'appeared by their counsel Michael' Page; and defendant Samsung Electronics' USA (“Samsung USA”) appeared by Its counsel John Ulin. (Defendant Apple, Inc. did not move for dismissal.) Having read the parties’ papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motions as follows.

BACKGROUND

-Plaintiff Free Kick Master is a Nevada limited liability company, and the owiier of the registered “Free Kick Master” mark'. SAC ¶¶ 10-14. Plaintiff alleges that the Apple AppStore offers a “Free Kick Master” application (“app”) or game for downloading to Apple devices; that the Amazon AppStore offers a “Free Kick Master” app or game for downloading to Kindle Fire devices; that Google Play offers a “Free [978]*978Kick Master” app or game for downloading to Android devices; and that Samsung advertises downloads of a “Free Kick Master” app or game to Android devices and offers the downloads for free. SAC ¶¶ 17-22.

Plaintiff asserts that the defendants’ use, sale, distribution, and/or promotion of these “Free Kick Master” apps/games is without authorization or consent from plaintiff and constitutes infringement of plaintiff’s trademark; and that it also causes a likelihood of confusion, mistake, or deception in the minds of the public because its “Free Kick Master” mark is identical to the names of the apps or games marketed and/or distributed by the four defendants. SAC ¶¶ 23-25.

Plaintiff contends that it held a “Free Kick Master event” in July 2008 in Houston TX, at which various famous soccer players appeared, and which was televised internationally. SAC ¶ 26. Plaintiff asserts that it held additional events in 2010 in Las Vegas NV, and in 2012 in Buenos Aires, Argentina.. SAC ¶¶ 28-29. Plaintiff alleges that the format and rules of the apps/games that are available on defendants’ sites are similar to the format and rules utilized in plaintiffs “Free Kick Master” game and events, and that it has developed products based on the “Free Kiqk Master” events, including electronic and board games and watches. See SAC ¶¶ 27-33.

Plaintiff filed the original complaint in this action on April 14, 2015, in the Northern District of Ohio,, alleging trademark infringement under federal law, and deceptive trade practices and unfair competition under Ohio law. Plaintiff filed a first amended complaint on May 12, 2015. Defendants filed motions to transfer venue, or in the alternative, to dismiss for failure to state a claim. On July 21, 2015, the Ohio court issued an order granting the motion to. transfer venue to this district. The court did not rule on the alternative motions to dismiss.

After the case was transferred, the parties stipulated to the filing of the SAC. In the SAC, plaintiff alleges six causes of action: (1) trademark infringement under the Lanham Act, 15 U.S.C. '§ 1114; (2) false designation of origin under the Lan-ham Act, 15 U.S.C. § 1125(a)); (3) injunc-tive relief; (4) trademark infringement under California law; (5) unfair, unlawful, and fraudulent business practices under Cal. Bus. & Prof. Code § 17200; and (6) false advertising under Cal. Bus. & Prof Code § 17500. .It appears that the six causes of action are asserted against all four defendants.

DISCUSSION

A. Legal Standard

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir.2003). Review is generally limited to the contents of the complaint, although the court can also consider a document on which the complaint relies if the document is central to the claims asserted in the complaint, and no party questions the authenticity of the document. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.2007).

To survive a motion to dismiss for failure' to state a claim, a complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires that a complaint include 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 may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state a cognizable legal [979]*979theory, or has not alleged sufficient facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir.2013). While the court is to accept as true all the factual allegations in the complaint, legally conelusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.2008).

The allegations in the complaint “must be enough to raise a right to relief above the speculative level[,]” and a motion to dismiss should be granted if the complaint does not proffer enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 558-59, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and quotations omitted). 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.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). “[Wlhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. at 679, 129 S.Ct. 1937. Where dismissal is warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir.2005).

B. Defendants’ Motions

1. Amazon/Google’s motion

In their joint motion, Amazon and Google argue that the claims asserted against them in the SAC should be dismissed for failure to state a claim.

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Bluebook (online)
140 F. Supp. 3d 975, 2015 U.S. Dist. LEXIS 141993, 2015 WL 6123058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/free-kick-master-llc-v-apple-inc-cand-2015.