United States District Court, C.D. California
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
DISMISS COUNTS 1, 3, 4, 7, 8, 11, AND 12 
D. WRIGHT, II UNITED STATES DISTRICT JUDGE.
November 10, 2017, Plaintiffs MGA Entertainment, Inc. and The
Little Tikes Company (collectively “MGA”) filed
this action against Defendants Dynacraft BSC, Inc.
Honeydukessweetshop; TheHouse; Theroyalflush, and DOES 1-10
(collectively “Defendants”) for various federal
and California trademark infringement claims. (See
generally Compl., ECF No. 1.) MGA identifies four of the
defendants (Freshdeals2112; Honeydukessweetshop; TheHouse;
and Theroyalflush) by their URL, and eBay merchant name
because it has not yet discovered the true identity of these
defendants (hereinafter the “Ebay Defendants”).
November 13, 2017, MGA filed a First Amended Complaint
(“FAC”). (FAC, ECF No. 6.) On January 8, 2018,
Dynacraft moved to dismiss MGA's FAC (ECF No. 14), and
MGA conceded that there were deficiencies with its FAC. (ECF
No. 27.) The Court granted Dynacraft's Motion to Dismiss,
with leave to amend, on January 16, 2018. (ECF No. 28.) On
February 9, 2018, Plaintiffs filed a Second Amended Complaint
(“SAC”). (ECF No. 32.) Before the Court is
Dynacraft's Motion to Dismiss MGA's SAC. (Mot., ECF
No. 35.) For the reasons below, the Court GRANTS IN
PART Dynacraft's Motion to Dismiss, with
leave to amend, as set forth below.
claims arise from Dynacraft's manufacturing of its
“Disney Princess Preschool Carriage.” (SAC ¶
27.) MGA asserts valid, registered trademarks, which remain
in full force and effect-U.S. Registration No. 1, 438, 168
for the words COZY COUPE for “ride-on toys” (the
“Cozy Coupe Mark”) and U.S. Registration Nos. 4,
688, 321 and 4, 824, 946 (collectively, the “Design
“The mark consists of a stylized face on the
front of a child's riding vehicle including a
pair of eyes located partially above the upper
front surface of the vehicle body. The broken line
outlining is to show the position or placement of
the mark on the goods. The outlining and the shape
of the vehicle are not claimed as part of the
“The color(s) red and yellow is/are claimed
as a feature of the mark. The mark consists of a
three-dimensional configuration of a child's
riding vehicle consisting of a red body of the
vehicle and a yellow roof with four yellow pillars
supporting the roof. [The mark excludes the
features shown in dotted lines].”
Ex. 1, ECF No. 32-1.)
manufactures and distributes the infringing product, the
Disney Princess Preschool Carriage, pictured below left,
which is a non-motorized, smaller version of Dynacraft's
motorized Princess Carriage sold previously, pictured below
5.) Dynacraft's product is not a Cozy Coupe product and
has no association with MGA's Cozy Coupe products.
(Opp'n 1, ECF No. 38.)
alleges that Dynacraft intentionally manufactured its Disney
Princess Preschool Carriage to look confusingly similar to
MGA's Cozy Coupe products. (SAC ¶ 27.) Defendants
also arranged for advertisements on the internet applying
MGA's Cozy Coupe Mark to Dynacraft products.
(Id.) MGA further alleges that Dynacraft conspired
with www.walmart.com, www.ebay.com,
toysrus.com, Ebay Defendants, and Doe Defendants 1-10, to
produce a product that could be confused for the Cozy Coupe.
(SAC ¶¶ 27-32.)
alleges claims for: Trademark Counterfeiting, 15 U.S.C.
§ 1114 (Count 1); False Designation of Origin, 15 U.S.C.
§ 1125(a) (Count 2); False or Misleading Description or
Misrepresentation of Fact, 15 U.S.C. § 1125(a) (Count
3); Federal Trademark Dilution, 15 U.S.C. § 1125(c)
(Count 4); Federal Unfair Competition, 15 U.S.C. §
1125(c) (Count 5); State Unfair Competition, California
Business & Professional Code § 17200 et. seq. (Count
6); State False and Misleading Statements, California
Business & Professional Code § 17500 (Count 7);
State Law Trademark Dilution, California Business &
Professional Code § 14247 (Count 8); Common Law Trade
Dress Infringement (Count 9); Common Law “Passing
Off” (Count 10); Civil Conspiracy (Count 11); and
Conspiracy to Commit Trademark Counterfeiting, 18 U.S.C.
§ 2320, 15 U.S.C. § 1114, 1125(a), and 1125(c), and
18 U.S.C. § 371 (Count 12). (See generally
now moves to dismiss counts 1, 3, 4, 7, 8, 11, and 12, on
several grounds. (See Mot.)
may dismiss a complaint under Rule 12(b)(6) for lack of a
cognizable legal theory or insufficient facts pleaded to
support an otherwise cognizable legal theory. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). To survive a motion to dismiss, a complaint need
only satisfy the minimal notice pleading requirements of Rule
8(a)(2)-a short and plain statement of the claim. Porter
v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual
“allegations must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). That is, the
complaint must “contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
determination whether a complaint satisfies the plausibility
standard is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679. A court is generally
limited to the pleadings and must construe all “factual
allegations set forth in the complaint . . . as true and . .
. in the light most favorable” to the plaintiff.
Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th
Cir. 2001). But a court need not blindly accept conclusory
allegations, unwarranted deductions of fact, and unreasonable
inferences. Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001).
pleading fraud must do so with heightened particularity.
See Fed. R. Civ. P. 9(b). Federal Rule of Civil
Procedure 9(b) establishes that an allegation of “fraud
or mistake must state with particularity the circumstances
constituting fraud.” The “circumstances”
required by Rule 9(b) are the “who, what, when, when,
where, and how” of the fraudulent activity. Cafasso
v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th
Cir. 2011). In addition, the allegation “must set forth
what is false or misleading about a statement, and why it is
false.” Id. This heightened pleading standard
ensures that “allegations of fraud are specific enough
to give defendants notice of the particular misconduct which
is alleged to constitute the fraud charged so that they can
defend against the charge and not just deny that they have
done anything wrong.” Semegen v. Weidner, 780
F.2d 727, 731 (9th Cir. 1985).
district court grants a motion to dismiss, it should provide
leave to amend unless it is clear that the complaint could
not be saved by any amendment. Manzarek v. St. Paul Fire
& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
2008). Leave to amend, however, “is properly denied . .
. if amendment would be futile.” Carrico v. City
& Cnty. of San Francisco, 656 F.3d 1002, 1008 (9th