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Choose Energy, Inc. v. American Petroleum Institute

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

April 8, 2015

CHOOSE ENERGY, INC., Plaintiff,
v.
AMERICAN PETROLEUM INSTITUTE, Defendant

For Choose Energy, Inc., Plaintiff: Michael Kelly Erickson, LEAD ATTORNEY, Ray Quinney Nebeker P.C., Salt Lake City, UT; Jeffrey E. Faucette, Skaggs Faucette LLP, San Francisco, CA.

For American Petroleum Institute, Defendant: Scott Richard Mosko, LEAD ATTORNEY, Finnegan, Henderson, Farabow, Garrett & Dunner LLP, Palo Alto, CA; Margaret A Esquenet, Finnegan Henderson Farabow Garrett and Dunner LLP, Washington, DC; Naresh Kilaru, Finnegan, Washington DC, DC.

Page 1219

ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

(Re: Docket Nos. 20, 32)

PAUL S. GREWAL, United States Magistrate Judge.

Last October, Plaintiff Choose Energy, Inc. filed this trademark infringement action against Defendant American Petroleum Institute over API's use of " choose energy" in its pre-election promotional campaign. In the days leading up to the November election, Choose Energy sought a temporary restraining order to require API to take down its website at chooseenergy.org. This court denied such relief, finding insufficient likelihood of success on Choose Energy's claims, particularly in light of Choose Energy's inability to establish that it competes with API. With the election in the rear view mirror--and the website at issue no longer in operation--API now moves to dismiss Choose Energy's federal and state law claims and moves to strike Choose Energy's state law claims under California's anti-SLAPP statute. Both motions are GRANTED.

I.

The Trademark Act of 1946 (" Lanham Act" ) prohibits uses of trademarks,

Page 1220

trade names, and trade dress that are likely to cause confusion about the source of a product or service.[1] " The Supreme Court has made it clear that trademark infringement law prevents only unauthorized uses of a trademark in connection with a commercial transaction in which the trademark is being used to confuse potential consumers.[2] Section 1114(a) is explicit in prohibiting only unauthorized use of a mark " in commerce . . . in connection with the sale, offering for sale, distribution, or advertising of any goods or services [if] . . . such use is likely to cause confusion."

For over ten years, Choose Energy and its online marketplace have allowed individuals and businesses in deregulated states like California to compare offerings from a diverse group of energy suppliers.[3] These suppliers do not compete on price alone.[4] They also compete on source of supply, allowing options including natural gas plans with carbon offsets and electricity from renewables such as wind and solar to tout their green credentials even if they charge more per kWh.[5] Choose Energy uses its domain name and trademarks to emphasize the fact that its services, as opposed to its offerings, are not energy biased.[6]

API touts itself as the leading trade association for the petroleum and natural gas industry in the United States.[7] API was established to afford a means of cooperation between the industry and the government in matters of national concern, foster foreign and domestic trade in American petroleum products and promote the interests of the petroleum industry.[8] API has long engaged in political messaging activities to advocate the collective views of its members and the petroleum industry as a whole.[9]

Last year, API launched a " Choose Energy" project as part of a campaign aimed at educating voters and encouraging them to engage in conversation about energy issues in the 2014 election and to elect officials who support energy initiatives.[10] API says that its sole purpose in this campaign, including its website at chooseenergy.org, was to " encourage voters to make energy a ballot box decision and to educate themselves in assessing candidates' energy policies" leading up to the November 4, 2014 election.[11]

After learning about API's campaign, Choose Energy wrote a letter to API demanding that its use of " Choose Energy" in its campaign stop. After a period of consideration and negotiation, API ultimately declined. API's response ...


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