Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rise Basketball Skill Development, LLC v. K Mart Corp.

United States District Court, N.D. California

June 27, 2017

RISE BASKETBALL SKILL DEVELOPMENT, LLC, Plaintiff,
v.
K MART CORPORATION, et al., Defendants.

          ORDER DENYING MOTION TO DISMISS

          William H. Orrick United States District Judge

         INTRODUCTION

         In this trademark case, plaintiff Rise Basketball Skill Development, LLC (“Rise Basketball”) alleges that defendants Kmart Corporation, Sears Holdings Management Corporation, and Risewear, LLC (collectively “Risewear”) infringe its “Winged Basketball Logo” with Risewear's “Rise” logo. Risewear has answered and brings several counter-claims because after Rise Basketball filed this suit, it created a new “RISE” logo intentionally designed to mimic Risewear's logo and to confuse consumers. Risewear brings claims for (1) common law unfair competition; (2) violation of California Business and Professions Code section 17200, California's unfair competition law; and (3) cancellation of Rise Basketball's registered trademarks.

         Rise Basketball now moves to dismiss Risewear's common law unfair competition and § 17200 claims under Rule 12(b)(6). It argues that Risewear has failed to adequately plead “passing off” to state a common law unfair competition claim and has not adequately alleged injury to establish standing on its § 17200 claim. Those claims are plausibly stated and Rise Basketball's motion to dismiss is DENIED.

         BACKGROUND

         In 2010, Gus Abellar began Rise Basketball Skill Development, a private basketball training camp in Las Vegas, Nevada. First Amended Counter Complaint ("FACC") ¶ 48 (Dkt. No. 48-1). In late 2012 or early 2013, Abellar moved to the Bay Area and opened up another camp in San Leandro at which he offered one-on-one basketball training services to children aged five to nineteen. Id. ¶ 48-9. Children enrolled in the training program were given apparel displaying a "Winged Basketball Logo" featuring the word "Rise" above a basketball with large eagle-like wings. Id.¶ 49.

         Image Omitted

         Rise Basketball also sold a limited amount of apparel displaying this logo at its San Leandro facility and on its website www.risebasketball.co. Id. ¶ 50

         In Spring 2015, Risewear was founded as an athletic footwear brand. Id. ¶ 57. In 2016, Risewear entered into an agreement with Kmart Corporation in which it granted Kmart the exclusive right to sell Risewear shoes. Id. Risewear has a "Dunking Basketball Logo" featuring the word "RISE" with a dunking basketball player in place of the "I." Id.

         Image Omitted

         The remaining letters are expressed in capital, handwritten-calligraphy letters "R" "S" and "E." Id. The entire logo, including the letters and the basketball player, is depicted in a saturated red color. Id. Risewear's "Dunking Basketball Logo" is on all Risewear-branded footwear and all brand marketing materials. Id.

         On August 9, 2016 Rise Basketball demanded that Risewear cease and desist the sale of Risewear shoes, alleging that Risewear's "Dunking Basketball Logo" infringes Rise Basketball's "Winged Basketball Logo." Id. ¶ 58. When Risewear did not acquiesce, Rise Basketball filed suit, bringing claims for trademark infringement and unfair competition. Id.

         In October, 2016, Abellar left San Leandro and moved back to Las Vegas. Id. ¶ 48. Risewear alleges that in March 2017, Rise Basketball shut down its training program and rebranded itself as an athletic apparel brand. Id. \ 60. It further alleges that Rise Basketball started marketing apparel on its website containing a new "RISE Logo" ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.