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Inc. v. 24-7 Intouch

United States District Court, N.D. California, San Jose Division

March 31, 2015

24/7 CUSTOMER, INC., Plaintiff,
v.
24-7 INTOUCH, et al., Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS RE: DKT. NO. 19

EDWARD J. DAVILA, District Judge.

Plaintiff 24/7 Customer, Inc. ("Plaintiff" or "24/7 Customer") brings the instant action against Defendants 24-7 Intouch ("Intouch"), and Ascenda USA, Inc. ("Ascenda") (collectively, "Defendant") alleging trademark infringement and false advertising under state and federal law and unfair competition under state law. Docket Item No. 1. Presently before the Court is Defendant's Motion to Dismiss Plaintiff's Complaint. Dkt. No. 19. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338, and 15 U.S.C. §§ 1116 and 1125.

Per Civ. L. R. 7-1(b), the motion was taken under submission without oral argument. Having fully reviewed the parties' papers, the Court DENIES Defendant's Motion to Dismiss Plaintiff's Complaint.

I. BACKGROUND

Plaintiff is a corporation organized and existing under the laws of the State of California and has its principal place of business in Campbell, California. See Dkt. No. 1 at 1. Plaintiff has been in the business outsourcing industry and has provided customer service and analytics through multiple market channels for over a decade. See Dkt. No. 25 at 1. Plaintiff's software and services help companies anticipate, simplify, and learn in order to provide smarter and more effective multi-channel customer service. See Dkt. No. 1 at 1. Plaintiff has federally registered its trademarks, "24/7, " "[24]7, " and "24/7 CUSTOMER, " (collectively, the "24/7 Customer Marks") and its oldest mark (24/7 CUSTOMER) was registered on October 10, 2006. See id. at 1-2.

Intouch is a Canadian company headquartered in Winnipeg, Canada, that recently registered to do business in the United States. See Dkt. No. 37 at 1. Intouch incorporated its U.S. entity, Ascenda USA, Inc., on October 10, 2010, but waited until June 19, 2012 before filing a statement of trade name referencing the "24-7 Intouch" designation. See id. Ascenda is a corporation organized and existing under the laws of the State of Colorado, with its principal place of business in Aurora, Colorado. See Dkt. No. 1 at 1.

Both companies have provided "goods and services that are nearly identical, " including "contact center solutions, " "customer analytics, " and "software platform[s] that allow[] agents to provide service on multiple platforms" to their customers, who include "many of the world's most recognized companies and brands... and other clients in the financial services, retails technology, communications, and travel industries...." See Dkt. No. 1 at ¶¶ 15-17.

Plaintiff alleges that Defendant was on constructive notice of 24/7 Customer's federal trademark registrations when it began using in the United States the "24-7" and "24-7 Intouch" designations with nearly identical business outsourcing services to a nearly identical class of consumers. See id. at 2. Plaintiff also alleges that it has recently become aware of several instances of actual confusion where potential consumers of Plaintiff have confused the two companies. See id.

On June 3, 2014, Plaintiff filed this lawsuit for trademark infringement and false advertising under state and federal law and unfair competition under state law to prevent further confusion and to protect the goodwill and brand recognition that Plaintiff allegedly has fostered for over a decade. See Dkt. No. 19 at 1; see also Dkt. No. 37 at 2:8-10.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Moreover, the factual allegations "must be enough to raise a right to relief above the speculative level" such that the claim "is plausible on its face." Twombly, 550 U.S. at 556-57.

When deciding whether to grant a motion to dismiss, the court generally "may not consider any material beyond the pleadings." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). The court must generally accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The court must also construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). However, the court may consider material submitted as part of the complaint or relied upon in the complaint, and may also consider material subject to judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-69 (9th Cir. 2001). "[M]aterial which is properly submitted as part of the complaint may be considered." Twombly, 550 U.S. at 555. Furthermore, "courts are not bound to accept as true a legal conclusion couched as a factual allegation." Id.

III. DISCUSSION

In its motion, Defendant argues that Plaintiff's complaint should be dismissed because its trademark, false advertising and unfair competition claims are time-barred by the statute of limitations and barred by the equitable doctrine of laches. See Dkt. No. 19 at 5-11. Specifically, Defendant alleges that Plaintiff's trademark claims are time-barred because it knew or should have known of the facts underlying its infringement causes of action by June 3, 2010, four years prior to the filing of its Complaint. Id. at 5:22-25. Defendant ...


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