United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS IN PART [ECF NO.
Roger T. Benitez United States District Judge.
Better Homes Realty, Inc. (“Plaintiff” or
“BHR”) filed a complaint alleging trademark
infringement, unfair competition, false designation of
origin, and injury to business reputation against Defendants
John Franco Watmore (“Watmore”), Florian
Antonietta Losapio (“Losapio”), and FLS and
Associates, Inc. (“FLS”). (Compl., ECF No. 1.)
Defendants now move to dismiss the complaint. (Mot., ECF No.
9.) Plaintiff opposes the motion. (Opp'n, ECF No. 10.)
For the following reasons, the Court grants the motion to
dismiss in part.
BHR is a real estate brokerage franchising business in
Nevada. (Compl. ¶ 5, 9.) BHR has franchise locations
throughout California and the United States. (Id.
¶ 9.) Plaintiff's predecessor registered the marks
“BETTER HOMES” and “BETTER HOMES
REALTY” with the U.S. Patent and Trademark Office on
June 25, 1985. (Id. ¶ 10.) The relevant
trademark registration numbers are 1509510 and 1344964.
(Id.) Plaintiff received the rights to the
trademarks through an assignment in June 2015. (Id.)
offer real estate and investment services in San Diego,
California under the names “San Diego Better Homes,
” “sandiegobetterhomes.com”, and/or
“San Diego Better Homes Realty.” (Id.
¶ 11.) Defendants' website and advertising materials
use the “BETTER HOMES” and “BETTER HOMES
REALTY” marks. (Id.) Their marketing materials
include the following mark:
(Id.) Defendants market to the same potential
customers as Plaintiff, and through the same market channels.
(Id.) Plaintiff has not authorized Defendants'
use of Plaintiff's trademarks. (Id. ¶ 12.)
Plaintiff alleges that Defendants' use of its marks is
likely to cause confusion, mistake, or deception among the
public. (Id. ¶ 14.) Plaintiff demanded that
Defendants cease and desist all use of the “BETTER
HOMES” trade name and service marks, but Defendants
refused. (Id. ¶ 15.)
subsequently brought a lawsuit alleging federal trademark
infringement under 15 U.S.C. § 1114(1), unfair
competition and false designation of origin under 15 U.S.C.
§ 1125(a), unfair competition under California Business
and Professions Code § 17200 et seq., common
law unfair competition, and common law injury to business
reputation. It seeks damages, an injunction, an accounting
for all profits derived from Defendants' use of the
marks, destruction of all of Defendants' promotional
materials bearing the marks, and attorneys' fees and
costs. Defendants move to dismiss the complaint for failing
to state a claim against any and all Defendants pursuant to
Federal Rule of Civil Procedure 12(b)(6).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) must be granted where the pleadings fail to state a
claim upon which relief can be granted. When considering a
Rule 12(b)(6) motion, the court must “accept as true
facts alleged and draw inferences from them in the light most
favorable to the plaintiff.” Stacy v. Rederite Otto
Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). A
plaintiff must not merely allege conceivably unlawful conduct
but must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim is facially plausible ‘when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'” Zixiang Li v. Kerry, 710 F.3d
995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
Court will first consider the parties' respective
requests for judicial notice. The Court will then discuss and
analyze the grounds for dismissal advanced by Defendants.
Requests for Judicial Notice
Defendants' Request ...