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Webceleb, Inc v. the Procter & Gamble Company

February 13, 2012

WEBCELEB, INC.,
PLAINTIFF,
v.
THE PROCTER & GAMBLE COMPANY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER DENYING DEFENDANTS BERMANBRAUN, LLC ANDMICROSOFT CORPORATION'S MOTION TO DISMISS [Docket No. 49]

This case comes before the Court on Defendants BermanBraun, LLC and Microsoft Corporation's motion to dismiss. Plaintiff Webceleb, Inc. filed an opposition to the motion, and Defendants filed a reply. For the reasons discussed below, the Court denies Defendants' motion.

I. BACKGROUND

Plaintiff Webceleb, Inc.: is the owner of U.S. Trademark Registration No. 3756711 for the mark WEBCELEB in international class 042 for "Providing temporary use of on-line non-downloadable software to enable uploading, posting, showing, displaying, tagging, blogging, sharing, or otherwise providing electronic media or information in the field of general interest over the Internet or other communications network." (First Am. Compl. ¶ 7.) Plaintiff "operates an online social marketplace for independent music that brings independent musicians and music fans together." (Id. ¶ 9.) The musicians use Plaintiff's platform to distribute their music directly to fans, and fans use the platform to browse for and purchase music. (Id.) Plaintiff also produces concerts featuring artists on Plaintiff's website. (Id. ¶ 11.)

In October 2010, Plaintiff experienced an unexpected number of visitors to its website. (Id. ¶ 17.) Plaintiff discovered this spike in virtual traffic was caused by Defendants' advertising and promotion of a category of the People's Choice Awards, namely the "Web Celeb" category. (Id. ¶ 18.)

On November 9, 2010, Plaintiff filed the present case against Defendant Procter & Gamble alleging claims for trademark infringement and unfair competition. Plaintiff filed a First Amended Complaint on October 11, 2011, alleging the same claims but adding Defendants BermanBraun and Microsoft. The present motion followed.

II. DISCUSSION

Defendants move to dismiss the claims alleged in the First Amended Complaint. They argue Plaintiff lacks standing, and it has failed to plead a claim for trademark infringement.*fn1

A. Standard of Review

In two recent opinions, the Supreme Court established a more stringent standard of review for 12(b)(6) motions. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To survive a motion to dismiss under this new standard, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). "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).

"Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). In Iqbal, the Court began this task "by identifying the allegations in the complaint that are not entitled to the assumption of truth." Id. at 1951.

It then considered "the factual allegations in respondent's complaint to determine if they plausibly suggest an entitlement to relief." Id. at 1951.

B. Standing

Defendants' first argument in support of their request for dismissal is that Plaintiff lacks standing. Specifically, Defendants argue Plaintiff has failed to allege sufficient facts to show injury.*fn2 However, the Court disagrees. Plaintiff has alleged that Defendants violated Plaintiff's exclusive right to the mark "webceleb." Although Plaintiff does not specifically plead the type of injury it suffered from this alleged trademark infringement, it is reasonable to infer that the injury suffered is the damage to Plaintiff's reputation. See Wine Group LLC v. Levitation Management, LLC, No. CIV. 2:11-1704 WBS JFM, 2011 WL 4738335, at *5 (E.D. Cal. Oct. 6, 2011) (stating "injury in a trademark infringement case is the damage to the ...


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