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Bird Barrier America, Inc. v. Bird-B-Gone

March 1, 2010

BIRD BARRIER AMERICA, INC., PLAINTIFF,
v.
BIRD-B-GONE, INC., DEFENDANT.



The opinion of the court was delivered by: Andrew J. Guilford United States District Judge

ORDER DENYING MOTION TO DISMISS CLAIMS 2 AND 5-6

This case concerns alleged patent infringement of a bird deterrent device and related claims. Defendant Bird-B-Gone, Inc. ("Defendant") filed a motion to dismiss claims two, five, and six ("Motion") of the Second Amended Complaint ("SAC"). After considering all papers and arguments submitted, the Court DENIES the Motion.

BACKGROUND

The following factual allegations are taken from Plaintiff's Second Amended Complaint ("SAC"), and as it must for this Motion, the Court assumes them to be true.

Plaintiff Bird Barrier America, Inc. ("Plaintiff") is the assignee of U.S. Patent No. 7,481,021 ("the '021 Patent"). (SAC ¶ 7.) This patent "relates to a device that delivers an electric shock to an animal that comes into contact with it." (SAC ¶ 8.) The patented device is primarily used "as a bird deterrent." (SAC ¶ 8.)

Defendant makes and sells a device called the "Bird Jolt Flat Track." (SAC ¶ 10.) According to Plaintiff, this device "incorporates and infringes the inventions protected by one or more claims of the '021 Patent." (SAC ¶ 10.) Further, Defendant "has without authorization used photographs of Plaintiff's products on [its] website and/or in catalogs and advertisements, falsely representing that the product depicted was its own product when in fact it was Plaintiff's." (SAC ¶ 37.) It also "substantially copied other aspects of Plaintiff's catalog and product offerings . . . ." (SAC ¶ 39.) And Defendant has made false and misleading representations concerning its product and its business success. (SAC ¶¶ 34-39.) According to Plaintiff, Defendant was on actual notice of the published patent application during the '021 Patent's prosecution and infringed the claims of the application. (SAC ¶ 27.)

Plaintiff sued Defendant based on these allegations. Plaintiff's SAC asserts claims for (1) patent infringement, (2) pre-issuance damages, (3) false designation of origin, (4) trade dress infringement, (5) copyright infringement, and (6) unfair competition. The Court now considers whether Plaintiffs second, fifth, and sixth claims as alleged in the SAC should be dismissed.

LEGAL STANDARD

Acourt should dismiss a complaint when its allegations fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

"'[D]etailed factual allegations' are not required." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (May 18, 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). The Court must accept as true all factual allegations in the complaint and must draw all reasonable inferences from those allegations, construing the complaint in the light most favorable to the plaintiff. Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993).

But the complaint must allege "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1940 (citing Twombly, 550 U.S. at 556). A court should not accept "threadbare recitals of a cause of action's elements, supported by mere conclusory statements," Iqbal, 129 S.Ct. at 1940, or "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

ANALYSIS

1. PLAINTIFF'S CLAIM FOR PRE-ISSUANCE DAMAGES

Defendant argues that Plaintiff's claim for pre-issuance damages should be dismissed. But Defendant fails to persuade the Court that this claim ...


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