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Better Homes Realty Inc. v. Watmore

United States District Court, S.D. California

April 18, 2017

BETTER HOMES REALTY, INC., Plaintiff,
v.
JOHN FRANCO WATMORE; FLORIAN ANTONIETTA LOSAPIO; FLS AND ASSOCIATES, INC.; and DOES 1 to 25, Defendants.

          ORDER GRANTING MOTION TO DISMISS IN PART [ECF NO. 9]

          Hon Roger T. Benitez United States District Judge.

         Plaintiff 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.

         BACKGROUND[1]

         Plaintiff 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.)

         Defendants 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:

         (Image Omitted)

(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.)

         Plaintiff 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).

         LEGAL STANDARD

         A 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. at 678.

         DISCUSSION

         The 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.

         I. Requests for Judicial Notice

         a. Defendants' Request ...


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