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E Clampus Vitus v. David L. Steiner

December 18, 2012

E CLAMPUS VITUS, PLAINTIFF,
v.
DAVID L. STEINER, THOMAS PEAK, JOHN MOORE, KARL DODGE, JOSEPH ZUMWALT CHAPTER 169 E CLAMPUS VITUS, AND DOES 1 THROUGH 50,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER DENYING DEFENDANTS' ANTI-SLAPP MOTION AND GRANTING DEFENDANTS' MOTION TO DISMISS

Defendants "move to dismiss and strike the Complaint," which is comprised of federal trademark infringement and unfair competition claims and California unfair business practices and false advertising claims. Defendants move to strike the Complaint under California Civil Code section 425.16, which prohibits strategic lawsuits against public participation ("SLAPP"); Defendants seek dismissal of the Complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6). Plaintiff did not oppose the motion.

For the reasons stated below, Defendants' motion to strike will be denied, and Defendants' dismissal motion will be granted.

I. FACTUAL ALLEGATIONS

This action concerns Plaintiff's allegations that Defendant Joseph Zumwalt Chapter 169 E Clampus Vitus, and individual Defendants who are agents/employees thereof, used certain of Plaintiff's registered trademarks "for commercial purposes" in violation of the Lanham Act and California law. Plaintiff alleges in relevant part as follows:

1. Plaintiff E Clampus Vitus, Inc. ("Plaintiff"), is a corporation organized and existing under the law of the State of California. . . .

15. Plaintiff brings this lawsuit to protect the substantial good will that it has developed in its distinctive E Clampus Vitus, ECV, and Clampers trademarks and logos. Plaintiff's federally-registered trademarks are U.S. Trademarks Registration No.'s 3226844, 3210518, 3148302, 3148312, 3237275, 3183357 which were registered between September 26, 2006 through May 1, 2007 on the principal register of the United States Patent and Trademark Office. . . .

16. Plaintiff uses the names and marks E Clampus Vitus, ECV, and Clampers among other names and marks to indicate membership in its' [sic] fraternal historical organization, to indicate Plaintiff's participation in services they provide and receive, to notify members and non-members of Clampers events, to inform the public of ECV causes, gatherings, to send out informational letters concerning Plaintiff's fraternal historical organization and newsletters in the field of fraternal historical organizations. Further, Plaintiff has used and continues to use the E Clampus Vitus, ECV, and Clampers marks, to offer goods such as: Jewelry pins for use on hats; Lapel pins; Ornamental lapel pins; Ornamental pins; Tie pins; Golf shirts; headgear, namely hats, baseball caps, caps, visors; Knit shirts; Polo shirts; Hooded Sweat Shirts; Short-sleeved shirts; and T-shirts.

17. Defendants have engaged in a pattern of infringing activity where the trademarks of Plaintiff were used. . . .

18. Plaintiff is informed and believes and on that basis alleges that in December 2010, Defendants participated in the City of Woodland Christmas parade as a member of the Joseph Zumwalt Chapter. Defendants used the registered trademarks of Plaintiff for commercial purposes and caused confusion by using and alleging that they had the right to use the trademark rights of Plaintiff to the names ECV, E Clampus Vitus and Clampers.

19. On or about March 2011, Defendants jointly conducted an event called the 4-SKIN DOINS, in which the trademarks of Plaintiff were used for commercial purposes.

20. On or about September 11, 2011, Defendants Moore, Dodge and Peak participated in the annual Georgetown Founders Day Celebration, on September 18, 2011. At this event, the Defendants used the registered trademarks of Plaintiff for commercial purposes, causing public confusion, and alleging that they had the right to use E Clampus Vitus, ECV, and Clampers; all Plaintiff's trademarks.

21. Plaintiff[ is] informed, believe[s] and on that basis allege[s] that on or about June 30, 2012 the Defendant Steiner and the Joseph Zumwalt Chapter will be auctioning off a motorcycle under the name Joseph Zumwalt ECV 169 . . . .

22. Plaintiff[ is] informed, believe[s] and on that basis allege[s] that Defendants have been using Plaintiff's trademarks, to misrepresent themselves as the Plaintiff[], while collecting monies and initiating new members, without the consent of the Plaintiff[] in an amount to be proven at trial. . . . .

26. As its first ground for relief, Plaintiff alleges federal trademark infringement under Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1)(a).

27. Plaintiff provides a service and sells: Jewelry pins for use on hats; Lapel pins; Ornamental lapel pins; Ornamental pins; Tie pins; Golf shirts; headgear . . . ; [ and shirts] in United States commerce under the ECV mark since September through December 2006. It has used the E Clampus Vitus mark continuously in United States commerce since that time. . . .

28. Defendants use of "ECV" "E Clampus Vitus" and "Clamper" in the Woodland Christmas Parade as Joseph Zumwalt ECV 169, and the sale of hot dogs at the Georgetown Founders Day Event . . . in the name of ECV Georgetown . . . represent an infringement according to 15 USC [§] 1114(1)(a). . . . .

32. As its second ground for relief, Plaintiff alleges federal unfair competition under

15 U.S.C. § 1125(a) . . . . 33. Defendants' unauthorized marketing and sale of services and goods using the E Clampus Vitus, ECV, and Clampers marks is likely to cause confusion, and deceive the public as to Defendants' affiliation.

34. Defendants participation in the Woodland Christmas Parade using ECV, E Clampus Vitus and Clampers, constitutes Federal Unfair Competition under the statute, violating 15 U.S.C. § 1125(a)(1)(A)-(B). . . . .

38. As its third ground for relief, Plaintiff alleges violation of California's Business and Professions Code ...


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