The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [Doc. No. 7]
Plaintiff BottleHood, Inc. ("BottleHood") initiated this copyright, trademark, and unfair competition action. Defendant The Bottle Mill moves to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. [Doc. No. 7.] Plaintiff opposes the motion [Doc. No. 8], and Defendant has replied. [Doc. No. 9.] For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendant's motion.
This action arises from The Bottle Mill's alleged infringement of Plaintiff's copyrights and trademarks.*fn1 Plaintiff produces eco-friendly household products made from repurposed glass, which it sells at local farmers' markets and on the Internet. [Cmplt., Doc. No. 1 ¶ 12.] Three of these items, the BottleHood Tumbler (GG1), the BottleHood Tumbler (AB1), and the BottleHood Dish (P1), have copyright registration applications pending with the United States Copyright Office ("Copyright Office"). Plaintiff uses the slogan "Good for the Neighborhood " in connection with these glassware products and its other goods. [Id. at ¶ 14.] Plaintiff also owns a federally registered trademark in the name "BottleHood." [Id. at ¶ 13.]
In or around August 2011, Defendants Roger Stellers and William Forbes formed a general partnership, doing business as The Bottle Mill. [Id. at ¶ 15.] Like BottleHood, The Bottle Mill sells household products made from repurposed glassware on the Internet and at farmers' markets. [Id. at ¶ 17.] To advertise its products online, The Bottle Mill uses photographs of BottleHood products without their permission. [Id.] The Bottle Mill also uses a similar tagline as BottleHood in connection with its repurposed goods, "Good for the Community." [Id. at ¶ 19.]
Plaintiff first learned of The Bottle Mill's sale of infringing products when a customer complained that they mistakenly bought a product from The Bottle Mill instead of BottleHood. [Id. at ¶ 17.] BottleHood responded by notifying The Bottle Mill's Internet service providers of the infringing material on or around December 2, 2011. [Id. at ¶ 18.] Plaintiff also sent a cease and desist letter to The Bottle Mill, asking it to terminate its online presence and to stop selling infringing products. [Id. at ¶ 21.]*fn2
On December 14, 2011, Plaintiff filed this action, alleging seven causes of action for: (1) Copyright infringement, 17 U.S.C. § 501; (2) Contributory copyright infringement; (3) Vicarious copyright infringement; (4) Federal trademark infringement, 15 U.S.C. §§ 1114 et seq.; (5) Violations of federal unfair competition law; (6) California common law trademark infringement; and (7) Violations of California's Unfair Competition Law, CAL. BUS. PROF. CODE §§ 17200 et seq. The Bottle Mill moves to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. [Doc. No. 7.]
I. REQUEST FOR JUDICIAL NOTICE
In support of its motion to dismiss, Defendant requests the Court take judicial notice of the following search results from the database of registered copyrights on the Copyright Office's website: (1) Results for "Bottlehood"; (2) Results for "Bottlehood Dish" under title; (3) Results for "Bottlehood Dish" under keyword; (4) Results for "Bottlehood Tumbler" under title; and (5) Results for "Bottlehood Tumbler" under keyword. [Doc. No. 9, p. 2.] The search for these keywords returned no results, which Defendant offers in support of its motion to dismiss Plaintiff's copyright infringement claim. [Id.] Because Plaintiff admits the items mentioned above are not currently registered copyrights, but pending approval from the Copyright Office, the Court DENIES Defendant's request AS MOOT. [Cmplt. ¶ 13.]
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). "The old formula -- that the complaint must not be dismissed unless it is beyond doubt without merit -- was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)]." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 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." Ashcroft v. Iqbal, __ U.S.__ , 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of ...