Better Homes Realty, Inc. v. Watmore
| Decision Date | 18 April 2017 |
| Docket Number | Case No.: 3:16-cv-01607-BEN-MDD |
| Court | U.S. District Court — Southern District of California |
| Parties | 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
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.
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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:
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(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 tocause 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).
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.
The Court will first consider the parties' respective requests for judicial notice. The Court will then discuss and analyze the grounds for dismissal advanced byDefendants.
In support of their motion to dismiss, Defendants ask this Court to take judicial notice of 25 documents. (Defs.' Request for Judicial Notice ("RJN"), ECF No. 9-3; see also Notice of Errata to Defs.' RJN, ECF No. 12-2.) The documents fall into six categories: (1) certified copies of San Diego County Fictitious Business Name Statements for "San Diego Better Homes Realty" and "SanDiegoBetterHomes.com" (Defs.' RJN Nos. 1-2); (2) saved screenshots of online searches run on the County's Fictitious Business Name Statement website (Defs.' RJN Nos. 3-7); (3) saved screenshots of Google searches (Defs.' RJN Nos. 8-13); (4) saved screenshots of webpages on Plaintiff's website (Defs.' RJN Nos. 14-19); (5) saved screenshots of webpages on Defendants' website sandiegobetterhomes.com (Defs.' RJN Nos. 20-23); and (6) U.S. Patent and Trademark Office Registration Numbers 1509510 and 1344964 (Defs.' RJN Nos. 24-25.) Houston M. Watson II, attorney for Defendants, performed the searches and collected the screenshots on September 7, 2016. (Decl. of Houston M. Watson ¶¶ 1-2.) Plaintiff objects to the request for judicial notice. (Pls.' Opp'n to Defs.' RJN, ECF No. 10-1.)
When considering a motion to dismiss, a court typically does not look beyond the complaint to avoid converting a motion to dismiss into a motion for summary judgment. Spy Optic, Inc. v. Alibaba.Com, Inc., 163 F. Supp. 3d 755, 760 (C.D. Cal. 2015) (citing Mack v. S. Bay Beer Distribs., Inc., 798 F.3d 1279, 1282 (9th Cir. 1986)). Notwithstanding this precept, a court may take judicial notice of material which is included in, referenced in, or relied upon by the complaint, matters in the public record, and facts "not subject to reasonable dispute" that are "generally known within [this Court's] territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned" under Federal Rule of Evidence 201(b). Id. (internal citations omitted).
In this case, the Court GRANTS Defendants' request for judicial notice of the certified copies of San Diego County Fictitious Business Name Statements, the screenshots of searches run on the County's Fictitious Business Name Statement website, and the trademark registration information from the U.S. Patent and Trademark Office. (Defs.' RJN Nos. 1-7 & 24-25.) Plaintiff does not substantively object to these documents, but rather contends that some of the documents are incorrectly described in Defendants' request. Defendants have corrected these inadvertent omissions in their Notice of Errata. These documents are proper subjects of judicial notice because they are public records and the registration information is referenced in the complaint. See Celebrity Chefs Tour, LLC v. Macy's, Inc., 16 F. Supp. 3d 1159, 1163 (S.D. Cal. 2014) ().
However, the Court DENIES Defendants' request as to the Google search result screenshots and the screenshots of Plaintiff's and Defendants' websites. Defendants seek to use these documents to establish that a consumer would not be confused between BHR and FLS's business and ask the Court to accept the truth of the facts stated in the various screenshots. The documents purportedly demonstrate that Plaintiff entered the San Diego market after Defendant FLS, that Plaintiff operates in San Diego as "BHR San Diego," and that a consumer seeking to buy real estate in San Diego would never see Defendants' and Plaintiff's marks on the same internet screen at the same time.
Information on websites, especially a party's website, is often not considered an appropriate subject of judicial notice. Gerritsen v. Warner Bros. Entm't, 112 F. Supp. 3d 1011, 1030-31 (C.D. Cal. 2015) (); Spy Optic, 163 F. Supp. 3d at 763 . Similarly, Google search results are not proper subjects of judicial notice because the "results of a Google search are continually changing andthus cannot 'be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.'" Novation Ventures, LLC v. J.G. Wentworth Co., LLC, No. 15-00954 BRO (PJWx), 2015 WL 12765467, at *3 (C.D. Cal. Sept. 21, 2015) ().
Here, Defendants ask the Court to take notice of information on corporate websites and Google search results to establish that Plaintiff cannot demonstrate consumer confusion as a matter of law. This is a key disputed issue. Defendants fail to show that the information in these documents is "not subject to reasonable dispute." Accordingly, to the extent Defendants seek judicial notice to demonstrate the lack of consumer confusion, the Court declines to take judicial notice of the documents. See Pinterest, Inc. v. Pintrips, Inc., 15 F. Supp. 3d 992, 997 (N.D. Cal. 2014) (); see also Victaulic Co., 499 F.3d at 237 (...
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