United States District Court, D. Arizona
G. Campbell United States District Judge
Kimberly Wolf moves to dismiss the second and third claims in
Plaintiff FLP, LLC's first amended complaint pursuant to
Rule 12(b)(6). Doc. 41. The motion is fully briefed (Docs.
45, 46) and neither party has requested oral argument. For
the reasons stated below, the Court will grant the motion in
part and deny it in part.
in the business of selling household goods to retail and
wholesale consumers under a variety of trademarked names,
including the “LIVIT” name and trademark (the
“Mark”). Doc. 36 at 2. The Mark has consumer
recognition, and many “thousands of products bearing
the [Mark] have been sold in retail stores.”
Id. at 6. Wolf, as the owner and manager of a
competing company, Liv-IT! LLC, has advertised and sold
wholesale household products displaying the Mark with and
without the ® trademark symbol. Id. at 4-5, 10.
This has resulted in “confusing and misleading
representations to the effect that Wolf is somehow
affiliated” with the Mark. Id. at 14.
use of the Mark has resulted in confusion to the public and
harm to FLP in the form of loss of competition, loss of
business, and “unfair benefit” to Wolf.
Id. at 15-16. Based on these allegations, FLP filed
its initial complaint on January 23, 2017, alleging three
claims against Wolf: violation of the Lanham Act, injurious
falsehood, and interference with prospective advantage. Doc.
1 at 5-16. Wolf moved to dismiss the injurious falsehood and
interference claims and the request for punitive damages
under the Lanham Act. Doc. 17. The Court granted the motion
with leave to amend the injurious falsehood and interference
claims. Doc. 27. In its order, the Court warned that a
further failure to state a claim would result in dismissal
without leave to amend. Id. at 6. FLP filed an
amended complaint on November 10, 2017, asserting the same
three claims against Wolf. Doc. 36 at 17-27. Wolf again moves
to dismiss the injurious falsehood and interference claims.
successful motion to dismiss under Rule 12(b)(6) must show
either that the complaint lacks a cognizable legal theory or
fails to allege facts sufficient to support its theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss as
long as it contains “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. 554, 570 (2007)). 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
previous order, the Court held that FLP failed to state a
claim for injurious falsehood because it did not allege that
Wolf made a false statement. Doc. 27 at 5. FLP's amended
complaint does not cure this deficiency. To state a claim for
injurious falsehood, FLP must allege: (1) Wolf's
publication of a false statement harmful to FLP's
interests, (2) Wolf's intent or knowledge that the
publication will result in harm to FLP, (3) Wolf's
knowledge that the statement is false or in reckless
disregard of the truth, and (4) resulting pecuniary loss to
FLP. See Restatement (Second) of Torts § 623A;
Gee v. Pima Cty., 612 P.2d 1079, 1079 (Ariz.Ct.App.
not pleaded facts to show that Wolf published any false
statement regarding the Mark or FLP's products. The
amended complaint alleges that Wolf published a false
statement by selling merchandise displaying the Mark adjacent
to the ® symbol, “representing that [Wolf's
product] was a product affiliated with the FLP Mark.”
Doc. 36 at 20. But as noted in the Court's earlier order,
the “use of ‘Liv-IT! ®' on Wolf's
products simply is not a statement about FLP or its
products.” Doc. 27 at 5.
cites QSP, Inc. v. Aetna Casualty & Surety Co.,
773 A.2d 906 (Conn. 2001), for the proposition that a
defendant's use of the plaintiff's trademark
registration symbol is a “false communication”
that disparages the plaintiff's title to goods. Doc. 45
at 6. But QSP did not concern the use of
another's trademark, and it reiterated that the tort of
injurious falsehood “requires[s] that the alleged
damaging statement be made concerning the plaintiff.”
773 A.2d at 918. Wolf's use of the Mark followed by the
® symbol is not a damaging statement about FLP or its
previous order, the Court stated that “if FLP plans to
amend the injurious falsehood claim, it must identify a
specific false statement made by Wolf and not rely on [the
® theory].” Doc. 27 at 5 n.3. FLP has not alleged
any such false statement, and again has failed to state a
claim for injurious falsehood.
Tortious Interference with ...