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FOX v. iVILLAGE

November 23, 2005.

KELLI FOX and DAVID FOX, Plaintiffs,
v.
iVILLAGE, a Delaware corporation, KNOWLEDGEWEB, INC., a California corporation, d/b/a Astrology.com, and DOES 1-100, Defendants.



The opinion of the court was delivered by: SAMUEL CONTI, Senior District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION

Kelli Fox and David Fox ("Plaintiffs" or "Foxes") brought this action against iVillage, Inc., KnowledgeWeb, Inc., and Does 1-100, (collectively "Defendants"), alleging, inter alia, trademark infringement, breach of contract and cybersquatting.

  Presently before the Court is Defendants' motion to dismiss Plaintiffs' claims pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1). The Court, having reviewed the parties' submissions, hereby GRANTS Defendants' motion and DISMISSES the case for want of jurisdiction. II. BACKGROUND

  The Foxes, who are astrologers and run their own on-line astrology business, signed Service Mark and Marketing Agreements ("Agreements") with Defendants, allowing Defendants to use the Kelli Fox mark as "Astrology Marks" or "Reserved Marks."*fn1 Complaint at 3-4 ("Compl."), Declaration of Aaron L. Danzer in Support of Motion to Dismiss the Complaint, Ex. B, at 2, 4 ("Danzer Decl."). The Agreements define "Astrology Marks" as the Kelli Fox mark when used in the "Field of Interest" ("FI") and "Reserved Marks" as the Kelli Fox mark when used "outside the Field of Interest." Danzer Decl., Ex. B at 2. The FI, as defined by the Agreements, means "the field of on-line information services directed primarily toward women and the field of on-line astrological information services." Id.

  The Foxes worked for Defendants from 1999, the year the agreements were signed, until 2003, a period the Agreements define as "the term of employment by the Founders [viz., the Foxes] by the Company [viz., iVillage and KnowledgeWeb] as set forth" in an employment agreement incorporated by reference. Id. at 4.

  The Agreements' Compensation Section states:
During the Employment Period, the Company shall have a royalty-free right and license to use the Reserved Marks. After the Employment Period, the Company agrees to pay the Founders a 5% royalty on gross revenues derived from goods and services employing the Reserved Marks, which goods or services are produced or authorized by the Company, less any returns. Id.
  After Plaintiffs left Defendants' employ, Defendants allegedly used the Kelli Fox mark for products and services outside the FI, including "psychic services" and the use of the Kelli Fox mark as if she were still employed by Defendants. Compl. at 4. The Foxes assert that Defendants have made a "substantial financial gain without royalty payments to the Foxes." Id. at 6.

  The Foxes filed a Complaint alleging breach of contract, trademark infringement and dilution, false advertising, cybersquatting, violation of the right of publicity, and unfair competition. Id. at 16.

  Defendants contend that the Court lacks jurisdiction over the case because Plaintiffs' claims truly arise under state law. Defendants' Memorandum in Support of Motion to Dismiss at 16-19 ("Defs.' Mem.").

  III. LEGAL STANDARD

  The Federal Courts have "original jurisdiction over all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331. The Federal Courts have supplemental jurisdiction over state law claims if the claims are "so related" to the federal claims that they "form part of the same case or controversy." 28 U.S.C. § 1367.

  A Federal Court may examine the question of subject matter jurisdiction sua sponte. See Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). Federal Courts must normally determine issues of subject matter jurisdiction before considering a case on its merits. Id. When a court lacks jurisdiction, the "only function remaining to the court is that of announcing the fact and dismissing the cause." Id., quoting Ex parte McCardle, 7 Wall. 506, 514 (1868).

  "In our notice pleading regime . . . the district court looks past the surface allegations to make its own assessment of what law the claim arises under." International Armor Limousine Company v. Moloney ...


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