United States District Court, C.D. California
CIVIL MINUTES - GENERAL
PERCY ANDERSON, District Judge.
Proceedings: IN CHAMBERS - COURT ORDER
Before the Court is a corrected Motion to Dismiss filed by defendant Mariann Smith (erroneously sued as Maryann Smith) ("Defendant") (Docket No. 17). An earlier Motion to Dismiss was filed that did not adhere to the Court's Local Rules (Docket No. 14). Defendant challenges the sufficiency of the Complaint filed by plaintiff Bubble Genius LLC ("Plaintiff"). Plaintiff has filed an Opposition. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds this matter appropriate for decision without oral argument. The hearing calendared for July 13, 2015, is vacated, and the matter taken off calendar.
Plaintiff filed her Complaint on January 6, 2015. Plaintiff is "in the business of designing, developing, manufacturing, selling and distributing hand soap, " including a line of soap identified as "Element Periodic Table Soap." (Compl. ¶¶ 2, 5.) According to Plaintiff, the Element Periodic Table Soap "employs distinctive trade dress based in part on data from" the periodic table. (Compl. ¶ 5.) The features of Plaintiff's alleged trade dress include: (1) the chemical symbol for a chemical element; (2) the atomic number of the chemical element; (3) the name of the chemical element; (4) the mass of the element; (5) the energy levels of the element; (6) the trademarks "Bubble Genius" and "Element Periodic Table Soap"; and (7) the color of the soap. (Id.) Plaintiff claims she has used this trade dress continuously since October 5, 2010. (Compl. ¶ 6.)
The Complaint alleges "[l]ong after" Plaintiff began using the trade dress, Defendant "commenced the manufacture and sale of hand soap exhibiting a trade dress that is virtually identical" to Plaintiff's trade dress. (Compl. ¶ 12.) Further, Plaintiff contends Defendant "had full knowledge of [its] exclusive and long standing proprietary rights" to the alleged trade dress. (Compl. ¶ 16.) In the Complaint, Plaintiff asserts two causes of action: (1) trade dress infringement; and (2) federal unfair competition and false designation of origin.
Defendant has operated an independent business under the names "Just Bubbly" and "Children's Treasures" from her personal home in Queens, New York since 1988. (Motion at 9.) Defendant designs and sells bath products, including novelty soaps that take the shape of mathematical symbols, animals, letters of the alphabet, and high heeled shoes. (Motion at 9-10.) Among her offerings, Defendant sells a line of soaps named "It's Elementary", which consists of square soaps that display individual elements as they appear on the periodic table, including each element's symbol, atomic number, mass, electronegativity, electron configuration, and valence number. (Motion at 10.) Defendant now moves to dismiss the Complaint in its entirety under Federal Rule of Civil Procedure 12(b)(2) on the grounds that the Court lacks personal jurisdiction and under Federal Rule 12(b)(6) for failure to state a claim upon which relief may be granted. The Court considers the Motion pursuant to 12(b)(2) first.
II. Personal Jurisdiction
The plaintiff bears the burden of establishing personal jurisdiction. Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). If a court has not heard testimony or made factual determinations, however, the plaintiff must only make a prima facie showing of personal jurisdiction. Id. The plaintiff may use affidavits of knowledgeable witnesses in meeting its burden of proving jurisdiction. Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). In determining whether the plaintiff has met this burden, a court must take the allegations in the plaintiff's complaint as true and resolve disputed jurisdictional facts in the plaintiff's favor. Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588-89 (9th Cir. 1996).
Before this Court can exercise jurisdiction, an applicable state rule or statute must potentially confer personal jurisdiction over the out of state defendant. Fed.R.Civ.P. 4(e). The California long-arm statute provides that a court may exercise jurisdiction on any basis not inconsistent with the State Constitution or the Constitution of the United States. Cal. Civ. Proc. Code § 410.10. Section 410.10 imposes limits on the power of California courts to exercise personal jurisdiction that are "coextensive with the outer limits of due process under the state and federal constitutions, as those limits have been defined by the United States Supreme Court.'" Data Disc, 557 F.2d at 1286 (quoting Republic Int'l Corp. v. Amco Engineers, Inc., 516 F.2d 161, 167 (9th Cir. 1975).
A defendant's activities involving the forum state should be such that the defendant "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Courts have adopted a two-tiered approach to analyze whether a non-resident defendant's contacts with the forum state are sufficiently substantial so as to comport both with the Constitution and with traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). This two-tiered approach involves a determination of whether a court has general or specific jurisdiction over a defendant. See Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998).
A. General Jurisdiction
General jurisdiction exists when there are "substantial" or "continuous and systematic" contacts with the forum state, even if the cause of action is unrelated to those contacts. Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 415, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). The contacts with the forum state must be of a sort that "approximate physical presence." Id.; see also Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) ("This is an exacting standard, as it should be, ...