United States District Court, S.D. California
PLAN P2 PROMOTIONS, LLC, a California limited liability company, Plaintiff,
WRIGHT BROTHERS, INC., a California corporation; COREY WRIGHT, an individual; and Y WRIGHT, an individual, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS (ECF NO. 24)
Janis L. Sammartino, United States District Judge
before the Court is Defendants Wright Brothers, Inc.'s,
Corey Wright's, and Casey Wright's Motion to Dismiss
First Amended Complaint, (“MTD, ” ECF No. 24).
Also before the Court are Plaintiff Plan P2 Promotions,
LLC's (“PPP”) Response in Opposition to,
(“Opp'n, ” ECF No. 30), and Defendants'
Reply in Support of, (“Reply, ” ECF No. 32),
Defendants' MTD. The Court vacated the hearing on the
motion and took the matter under submission pursuant to Civil
Local Rule 7.1(d)(1). (ECF No. 33.) After considering the
parties' arguments and the law, the Court GRANTS IN PART
and DENIES IN PART Defendants' MTD.
PPP designs, markets, distributes, and sells bobbleheads.
(FAC ¶ 14, ECF No. 15.) One such bobblehead is known as
the Donald Trump Red Hat Bobblehead (the “PPP
Work”), which Plaintiff published on October 27, 2015.
(Id. ¶ 15.) Plaintiff filed an application for
the registration of the PPP Work on October 19, 2016 with the
United States Copyright Office. (Id.; see also
Id. Exs. 1, 2.) The following is a photocopied image of
the complete PPP Work:
argues that Defendants have reproduced, prepared derivative
works, and distribute or have distributed unauthorized copies
of the PPP Work to the public by selling two of their own
bobbleheads (“Defendant Work 1” and
“Defendant Work 2”). (Id. ¶ 16.) A
side-by-side comparison of the PPP Work and Defendant Work 1
and Defendant Work 2 is reproduced below:
around October 20, 2016, Plaintiff sent notices to internet
service providers indicating that Defendants' infringing
work was being advertised and sold on the service
providers' respective sites, and demanding that those
advertisements be taken down pursuant to the Digital
Millennium Copyright Act (“DMCA”). (Id.
¶ 17.) Plaintiff alleges that Defendants shifted their
advertising and sales to other platforms and outlets to avoid
the impact of these DMCA notices. (Id.)
addition to copyright infringement, Plaintiff alleges that
Defendants have engaged in false advertising. (Id.
¶ 18.) Specifically, Plaintiff alleges that Defendants
falsely advertised in various media that their products were
sponsored or otherwise affiliated with the Trump/Pence
Presidential campaign (using the Trump/Pence campaign logo on
websites and other advertisements; indicating that a
copyright for their website was owned by or affiliated with
Trump; and stating in their advertisements that
Defendants' bobbleheads were “The official
bobblehead doll of the 2016 Donald Trump Presidential
campaign”). (Id.) Plaintiff alleges that
neither Trump nor the Trump/Pence campaign authorized the
sale of or had any association with Defendants' works.
Plaintiff alleges that Defendants falsely advertised the sale
of Defendant Work 2 but, when consumers actually ordered
Defendant Work 2, Defendants actually shipped Defendant Work
1. (Id. ¶ 20.) Plaintiff alleges that this was
in an effort to disguise the blatant copying of the PPP Work
(since Plaintiff alleges that Defendant Work 1 looks more
similar to its work than Defendant Work 2). (Id.
¶ 19.) Nevertheless, Plaintiff alleges that both of
Defendants' works infringe its PPP Work. (Id.)
brings three claims against Defendants based on these
allegations: (1) copyright infringement against Defendant
Wright Brothers, Inc.; (2) copyright infringement against
Defendant Casey Wright and Defendant Corey Wright; and (3)
false advertising against all Defendants. (See generally
id.) Plaintiff seeks injunctive relief, impoundment of
all counterfeit and infringing copies of the PPP Work, and
general, special, actual, and statutory damages.
Rule of Civil Procedure 12(b)(6) permits a party to raise by
motion the defense that the complaint “fail[s] to state
a claim upon which relief can be granted, ” generally
referred to as a motion to dismiss. The Court evaluates
whether a complaint states a cognizable legal theory and
sufficient facts in light of Federal Rule of Civil Procedure
8(a), which requires a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Although Rule 8 “does not require
‘detailed factual allegations, ' . . . it [does]
demand more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). In other words, “a plaintiff's obligation
to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (citing Papasan v. Allain, 478 U.S.
265, 286 (1986)). A complaint will not suffice “if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 677 (citing Twombly, 550
U.S. at 557).
order to survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A
claim is facially plausible when the facts pled “allow
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal,
556 U.S. at 677 (citing Twombly, 550 U.S. at 556).
That is not to say that the claim must be probable, but there
must be “more than a sheer possibility that a defendant
has acted unlawfully.” Id. Facts
“‘merely consistent with' a defendant's
liability” fall short of a plausible entitlement to
relief. Id. (quoting Twombly, 550 U.S. at
557). Further, the Court need not accept as true “legal
conclusions” contained in the complaint. Id.
This review requires context-specific analysis involving the
Court's “judicial experience and common
sense.” Id. at 678 (citation omitted).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
complaint does not survive 12(b)(6) analysis, the Court will
grant leave to amend unless it determines that no modified
contention “consistent with the challenged pleading . .
. [will] cure the deficiency.” DeSoto v. Yellow
Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992)
(quoting Schriber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).
move to dismiss Plaintiff's FAC on two principal grounds
with several sub-arguments in each: (I) Plaintiff's
Lanham Act claim fails; and (II) Plaintiff has no basis to
seek fees or statutory damages under the Copyright Act.
(See generally MTD, ECF No. 24-1.) The Court
addresses each argument in turn.
Plaintiff's Lanham Act Claim
move to dismiss Plaintiff's Lanham Act claim on various
grounds: (A) Plaintiff's allegations supporting its false
advertising claim under the Lanham Act must meet Rule
9(b)'s heightened pleading standard; (B) Plaintiff fails
to allege false advertising under Rule 9(b); and (C) even if
Plaintiff's allegations survive Rule 9(b), its Lanham Act
claim still fails for other reasons. (See Id. at
13-26.) The Court considers each argument in
Whether Rule 9(b) Applies to Plaintiff's ...