IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
November 14, 2012
LOUISIANA PACIFIC CORPORATION,
JAMES HARDIE BUILDING PRODUCTS, INC., AND DOES 1-5, INCLUSIVE DEFENDANTS.
ORDER GRANTING MOTION TO DISMISS
Plaintiff Louisiana Pacific Corporation ("Plaintiff") brings this action against Defendant James Hardie Building Products ("Defendant") for, among other things, trademark infringement and 18 tortious interference with economic advantage. ECF No. 1 19 ("Compl."). The gravamen of the Complaint is that Defendant 20 injured Plaintiff and infringed its registered trademarks by paying 21 Google, an internet search engine, to direct consumers to 22 Defendant's website when consumers performed an internet search 23 using Plaintiff's marks. 24 Defendant now moves to dismiss pursuant to Federal Rule of i Un 17 Civil Procedure 12(b)(6) on the grounds that Plaintiff has failed 26 to identify all of the trademarks that were allegedly infringed. 27 ECF No. 14 ("MTD"). In the alternative, Defendant moves for a more 28 definite statement with respect to allegedly infringed marks pursuant to Federal Rule of Civil Procedure 12(e). Defendant also 2 moves to dismiss Plaintiff's claim for tortious interference on the 3 ground Plaintiff has not alleged the existence of an economic 4 relationship between itself and its prospective clients. The 5 motion is fully briefed, ECF Nos. 20 ("Opp'n"), 21 ("Reply"), and 6 appropriate for determination without oral argument, Civ. L.R. 7-7 1(b).
The Court finds that the Complaint lacks the requisite 9 specificity since it does not identify every trademark which was 10 allegedly infringed. In its opposition papers, Plaintiff argues that it need not "describe every potential . . . infringement of protected material." Opp'n at 5. This may be true, but it misses the point of Defendant's motion. Defendant is not arguing that Plaintiff is required to describe every instance of alleged 15 infringement. Rather, Defendant is arguing that Plaintiff should identify every trademark which was allegedly infringed. See MTD at 5. This is not an overly burdensome requirement and is necessary 18 to provide Defendant with adequate notice. Plaintiff's authority 19 does not suggest that the Court should impose a lower standard.*fn1
As pled, the Complaint identifies only three of the allegedly 21 infringed marks and leaves Defendant to guess at the others. This 22 is insufficient. 23 Defendant also argues that Plaintiff's claim for tortious 24 interference with economic advantage fails because Plaintiff has not pled facts sufficient to establish that it has an existing 2 relationship with the visitors to its website. Under California 3 law, "[a]n essential element of the tort of interference with 4 prospective business advantage is the existence of a business 5 relationship with which the tortfeasor interfered. Although this 6 need not be a contractual relationship, an existing relationship is 7 required." Roth v. Rhodes, 25 Cal. App. 4th 530, 546 (Cal. Ct. 8 App. 1994) (internal citations omitted). "Allegations that amount 9 to a mere 'hope for an economic relationship and a desire for 10 future benefit' are inadequate to satisfy the pleading requirements of th[is] element of the tort." Google Inc. v. Am. Blind & Wallpaper Factory, Inc., C 03-05340 JF, 2005 WL 832398, at *8 (N.D. Cal. Mar. 30, 2005) (quoting Blank v. Kirwan, 39 Cal.3d 311, 331 (Cal. 1985)).
consumers who visit its website to purchase goods and services and there exists a corresponding probability that those consumers will 18 confer a future economic benefit to [Plaintiff]." Compl. ¶ 98. Defendant argues that "such unidentified consumers have no existing 20 relationship with Plaintiff." MTD at 7. Plaintiff responds that 21 it should not be required to identify these consumers because 22 Plaintiff contends that Google's search program allows Defendant to 24 specifically identify Internet users who clicked on a particular 25 link and were later converted into customers who eventually 26 purchased goods associated with that link. Id. 27 28 unfounded assumption that a person forms a business relationship Plaintiff alleges it "has an economic relationship with Defendant has sole possession of their names. Opp'n at 8.
Plaintiff's argument lacks merit as it is premised on the with Plaintiff when he or she enters particular terms in Google's 2 search engine. There is a possibility that consumers who search 3 for Plaintiff through Google will choose to purchase Plaintiff's 4 goods or services at some point in the future; however, such 5 consumers do not have an existing business relationship with 6 Plaintiff merely because they perform an internet search. In sum, Plaintiff's "alleged expectation of and prospective sales to these 8 customers . . . does not rise to the level of the requisite promise 9 of future economic advantage" necessary to meet the pleading 10 requirements for a claim for tortious interference. Google, 2005 WL 832398, at *9 (internal quotations omitted). This is especially true since those allegations encompass "'new' customers with whom [Plaintiff] cannot claim any past or present interactions." Id.
For the reasons set forth above, the Court GRANTS Defendant James Hardie Building Products, Inc.'s Motion to Dismiss. Plaintiff Louisiana Pacific Corporation's Complaint is DISMISSED to the extent that it is predicated on Defendant's alleged 18 infringement of unidentified marks. The Court GRANTS Plaintiff 19 thirty days' leave to amend its Complaint to specifically identify 20 each and every mark that Defendant allegedly infringed. 21 Additionally, Plaintiff's claim for tortious interference with a 22 prospective business advantage is DISMSISED WITH PREJUDICE. 23 24 IT IS SO ORDERED.
UNITED STATES DISTRICT JUDGE