The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
This suit involves claims of patent and copyright
infringement, unfair competition, and other claims of plaintiff
Franklin Electronic Publishers ("Franklin") against defendants
Unisonic Products Corporation ("Unisonic") and Maurice Lowinger
("Lowinger"). Defendants move pursuant to Rules 8(a) and
12(b)(6) of the Federal Rules of Civil Procedure for dismissal
of Franklin's claims for copyright infringement, common law
trademark infringement, unfair competition and violations of
the New York State consumer protection law and anti-dilution
law (Counts III, IV, VI, VII, VIII and IX) and also for
dismissal pursuant to Rule 12(b)(6) of all claims against
defendant Maurice Lowinger for failure to state a claim against
him personally.*fn1 In the alternative, defendants move for a
more definite statement pursuant to Rule 12(e) of the Federal
Rules of Civil Procedure. According to the complaint, Lowinger
is an officer and director and the sole shareholder of
This action arises out of the sale and distribution of
electronic spelling correction aids — small devices resembling
calculators, into which words may be entered by means of a
keyboard and which then display a correct spelling for the
entry. Plaintiff Franklin alleges that the defendants are
selling and distributing an electronic spelling aid under the
name "Word Pro" in infringement of Franklin's patent rights
under 35 U.S.C. § 171, 271 and 281, copyright rights under
17 U.S.C. § 501, and trademark rights under 15 U.S.C. § 1125, as
to Franklin's own electronic spelling aid,
sold under the name "Spelling Ace." Franklin also alleges
trademark infringement and unfair competition under New York
common law, and violations of the New York State anti-dilution
statute, N.Y.Gen.Bus.L. § 368-d, and of the New York State
consumer protection law, N.Y.Gen.Bus.L. § 349. This motion will
not be treated as a Rule 56 motion for summary judgment, since
the only matters other than the text of the complaint itself
which the Court has considered are the exhibits attached to the
complaint and thus incorporated therein. See Goldman v. Belden,
754 F.2d 1059, 1065-66 (2d Cir. 1985).
The accepted rule is that a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. See Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
When passing on a motion to dismiss, the court must accept the
allegations in the complaint as true and construe them in favor
of the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cruz v. Beto,
405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).
I. The Claims Against Lowinger
As to dismissal of the claims against Lowinger, defendants
rely on the general rule that the separate identity of a
corporation should be recognized and upheld unless specific
unusual circumstances allow for an exception. See Manville
Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 552 (Fed.
Cir. 1990); William Wrigley Jr. Co. v. Waters, 890 F.2d 594,
600 (2d Cir. 1989). They assert that Franklin has not alleged
sufficient facts to justify piercing the corporate veil.
Piercing the corporate veil is justified when the corporate
entity is the "alter ego" of the person sought to be held
liable, because that person so dominates the corporation that
the corporation served his interests rather than its own. See
Gartner v. Snyder, 607 F.2d 582, 586 (2d Cir. 1979). In patent
infringement cases, "corporate officers who actively aid and
abet their corporation's infringement may be personally liable
for inducing infringement under [35 U.S.C.] § 271(b) regardless
of whether the corporation is the alter ego of the corporate
officer." Orthokinetics, Inc. v. Safety Travel Chairs, Inc.,
806 F.2d 1565, 1579 (Fed. Cir. 1986) (citing Power Lift, Inc.
v. Lang Tools, Inc., 774 F.2d 478, 481 (Fed. Cir. 1985)).
Paragraph 4 of the Complaint states "[o]n information and
belief, Lowinger is an Officer and Director of Unisonic, is the
sole shareholder of Unisonic, is actively engaged in and
directs and controls the business policies of Unisonic, and has
a direct financial interest in such activities." Complaint, ¶
4. Such pleading is conclusory at best and does not contain
allegations of acts sufficient to support those conclusions.
Accordingly, the motion to dismiss all claims against Maurice
Lowinger is granted without prejudice to plaintiff's filing an
amended complaint at a later date.*fn2
II. Counts III and IV; Copyright Infringement
Count III alleges copyright infringement of a work entitled
"Spelling Ace Second Edition Computer Program and Screen
Display," which consists of a computer program and screen
display registered on August 7, 1987. See Complaint, ¶ 25, and
Exhibit C. Count IV is for copyright infringement of a work
entitled "Spelling Ace (Second Edition)," which consists of a
compilation of words and spellings registered on July 25, 1988.
See Complaint, ¶ 35, and Exhibit D. The claimed infringement of
both of these registrations is "by the manufacture and/or sale
of product, including the Word Pro Model 305 spelling corrector
product, which contains portions copied and/or derived from the
aforesaid copyrighted work" without Franklin's consent.
Complaint, ¶¶ 28, 38.
Having established ownership by its registration
certificates, plaintiff can show "copying" either by direct
evidence, or circumstantially by showing 1) access to the
copyrighted work, and 2) substantial similarity as to
protectible material in the two works. See Reyher v. Children's
Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied,
429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976). Defendants
argue that plaintiff's complaint fails to allege "with any
specificity the basis upon which access was obtained" or "to
identify the information upon which Plaintiff bases its belief
that there is substantial similarity constituting copyright
infringement. . . ." Defendant's Memorandum in Support of
Motion to Dismiss at 16-18. Defendants claim they cannot
determine, as to the copyright registration in Exhibit D (claim
IV), whether the software elements or the visual elements of
the computer are claimed to be infringed.
Rule 8(a)(2) provides that a pleading shall contain "a short
and plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). The purpose of the
rule is to give "fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a
responsive answer." Brown v. Califano, 75 F.R.D. 497, 498
In Hartman v. Hallmark Cards, Inc., 639 F. Supp. 816 (W.D.Mo.
1986), aff'd, 833 F.2d 117 (8th Cir. 1987), the court noted
that "[i]n applying Rule 8 to copyright infringement actions,
courts have required that particular infringing acts be alleged
with some specificity." Id. at 820 (citations omitted). That
complaint was held to violate Rule 8 in that, instead of
alleging the copyrighted materials infringed, it contained a
broad claim of infringement by "all other animated productions,
paper products, dolls, toys, and any other merchandising and
licensing products which have been granted by Hallmark Cards,
Incorporated." Id. (emphasis added).
Defendants also rely on Cole v. Allen, 3 F.R.D. 236, 237
(S.D.N.Y. 1942), a case involving a demand for a bill of
particulars, in which plaintiff annexed to the complaint only
the titles of six books. The court stated that the gist of the
complaint showed plaintiff did not intend "to charge that each
and every episode, character and dialogue in such books" was
infringed by defendant's use of the books in a radio broadcast
and ruled that defendants were ...