United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendants Ihangtvs.com, LLC
and Ferlando Parker's motion to dismiss. (Doc. 16).
Plaintiff Burton McGuire d/b/a Nice Guys TV Mountings filed
the instant action against Defendants on September 28, 2018,
alleging violations of the Anti-Cybersquatting Protection
Act, § 43 of the Lanham Act. (Doc. 1 at ¶¶
16-26). The complaint also alleged violations of
Alabama's Trademark Act and Alabama tort law. (Doc. 1 at
¶¶ 27-38). All parties reside in Alabama, so
Plaintiff asserts federal question jurisdiction under the
federal Lanham Act. (Doc. at ¶ 4).
their motion to dismiss and brief in support, Defendants
argue that Plaintiff insufficiently pled all the elements of
a violation of the Anti-Cybersquatting Protection Act and
moves this court to dismiss Counts I and II pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Doc. 17 at 4-12).
Defendants also move this court to dismiss Plaintiff's
common law tort claim for failure to state a claim and to
dismiss all claims against Defendant Ferlando Parker as
insufficiently alleging wrongdoing against him as an
individual. (Doc. 17 at 12-15).
reasons stated below, the court will GRANT Defendant's
motion to dismiss Plaintiff's ACPA claim as
insufficiently pled. But the court will also GRANT Plaintiff
leave to amend its complaint to address the deficiencies this
Memorandum Opinion identifies. Because the court's
subject matter jurisdiction in this case relies on
Plaintiff's ACPA claim, the court declines to consider
any of Defendants' alternative arguments for dismissal
until it receives Plaintiff's amended complaint on the
jurisdictionally dispositive cause of action.
Nice Guys TV Mountings began operation as a television and
home theater installation service in late 2015. It began
using the trade name “Nice Guys TV Mounting” in
December 2015; registered that trade name with the Alabama
Secretary of State on January 4, 2016; and purchased the
domain name www.niceguystvmountings.comsometime in
early 2016. Since then, Nice Guys has used that domain name
as the company's website for the purposes of advertising
its services to potential customers. (Doc. 1 at ¶ 7).
Nice Guys alleges it has incorporated its name in all of its
“other marketing and business promotional
materials” and that the trade name “has developed
a distinctive and widespread recognition in the
marketplace.” (Doc. 1 at ¶ 8).
the complaint does not specify the timing, Nice Guy alleges
that after it launched its business and website “[m]ore
than one customer informed Nice Guys that when they typed in
a URL containing the phrase ‘niceguystvmounting,'
they were directed to ihangtvs.com or www.wehangtvs.com, a
competitor's website”. (Doc. 1 at ¶ 10).
website www.wehangtvs.comallegedly belongs to
Defendants Ihangtvs.com, LLC, Nice Guys' direct
competitor, and Ferlando Parker, Ihangtvs.com's president
and owner. Nice Guys alleges that, “just months”
after Nice Guys began operations and launched its website,
Defendants registered domain names similar to plaintiff's
domain names: www.niceguystvmounting.com,
www.niceguytvmounting.com. (Doc. 1 at ¶ 11).
Guys allegedly contacted Defendants to request that they
forfeit ownership of the three domain names, but Defendants
refused. Nice Guys alleges that after contacting Defendants
to request they forfeit the domain names, Defendants
re-registered the three domain names in July 2018, with full
knowledge that Nice Guys had registered the trade name and
trademark with the Alabama Secretary of State.
Guys subsequently filed this lawsuit and moved for a
preliminary injunction. Defendants moved to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(6).
STANDARD OF REVIEW
12(b)(6) motion to dismiss attacks the legal sufficiency of
the complaint. Generally, the Federal Rules of Civil
Procedure require only that the complaint provide
“‘a short and plain statement of the claim'
that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide
the grounds of her entitlement, but Rule 8 generally does not
require “detailed factual allegations.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley, 355 U.S. at 47). It does, however,
“demand more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Pleadings that contain nothing more than “a formulaic
recitation of the elements of a cause of action” do not
meet Rule 8 standards nor do pleadings suffice that are based
merely upon “labels or conclusions” or
“naked assertions” without supporting factual
allegations. Twombly, 550 U.S. at 555, 557.
Supreme Court explained that “[t]o 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.'” Iqbal, 556 U.S.
at 678 (quoting and explaining its decision in
Twombly, 550 U.S. at 570). To be plausible on its
face, the claim must contain enough facts that “allow
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. Although “[t]he plausibility standard
is not akin to a ‘probability requirement, '”
the complaint must demonstrate “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. “Where a complaint pleads facts that are
merely consistent with a defendant's liability, it
‘stops short of the line between possibility and
plausibility of entitlement to relief.'”
Id. (quoting Twombly, 550 U.S. at 557). If
the court determines that well-pleaded facts, accepted as
true, do not state a claim that is plausible, the claim must
be dismissed. Id.