United States District Court, S.D. New York
ROBERT G. LOPEZ, Plaintiff,
BIGCOMMERCE, INC. and GOOGLE, INC., Defendants.
OPINION AND ORDER
PAUL OETKEN United States District Judge.
G. Lopez, proceeding pro se, brings this action
against Defendants BigCommerce, Inc.
(“BigCommerce”) and Google, Inc.
(“Google”), asserting six causes of action
arising from the alleged infringement of his intellectual
property. (Dkt. No. 3 (First Amended Complaint or
“FAC”).) Lopez seeks leave to file a second
amended complaint, adding a seventh cause of action against
Google's counsel for fraudulent misrepresentation. (Dkt.
No. 13.) Google moves to dismiss all of Lopez's claims
and opposes Lopez's request to amend. (Dkt. No. 18; Dkt.
No. 15.) For the reasons that follow, Google's motion to
dismiss is granted and Lopez's motion to file a second
amended complaint is denied.
following facts are taken from the operative complaint and
are presumed true for the purposes of this motion.
action was initially commenced against both
BigCommerce and Google. (FAC ¶¶ 9-10.) Lopez
now indicates that he is no longer pursuing any claims
against BigCommerce, since BigCommerce took corrective action
after being notified by Lopez of its allegedly infringing
activity. (Dkt. No. 21 at 3.) Google, therefore, is now the
sole Defendant in this case.
to the FAC, Google is “an online search engine
provider” that “receives money and compensation
through Google Adwords and in other ways from the search of
products by keywords and publishes and exploits photographs
and other images on the worldwide internet.” (FAC
alleges that he, through his clothing business L.E.S.
Clothing Co., is the owner of a stylized “HUSTLE”
trademark, registered with New York State, which is printed
on hats and other clothing items and sold from retail stores
in New York, New Jersey, and Connecticut. (Id.
¶¶ 2, 11-20.) Lopez is also the owner of a
federally registered copyright in the design of a cap bearing
the stylized HUSTLE mark, titled the “Hustle Snapback
Design.” (Id. ¶¶ 2, 19.) Lopez
alleges that Google “published and exploited a
photograph and image of a cap which was a copy of
Plaintiff's registered copyright and which also violates
Plaintiff's trademark.” (Id. ¶ 26.)
Lopez alleges that use of his intellectual property occurred
without his consent, for commercial gain, and has resulted in
actual confusion in the marketplace. (Id.
¶¶ 27-28, 30.) Google moves to dismiss. (Dkt. No.
Motion to Dismiss
considering a motion to dismiss for failure to state a claim,
the Court accepts as true all allegations in the complaint
and draws all reasonable inferences in Plaintiff's favor.
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d
Cir. 2006). To survive a motion to dismiss, the complaint
must plead “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 has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Moreover, ‘[a] document filed pro se is
to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by
lawyers.'” Henning v. N.Y.C. Dep't of
Correction, No. 14 Civ. 9798, 2016 WL 297725, at *1
(S.D.N.Y. Jan. 22, 2016) (alteration in original) (internal
quotation marks omitted) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)).
asserts six causes of action: (1) trademark infringement
under the Lanham Act; (2) unfair competition and false
designation of origin under the Lanham Act; (3) trademark
infringement and unfair competition under New York common
law; (4) copyright infringement under the Digital Millennium
Copyright Act (“DMCA”), 17 U.S.C. § 101,
et seq.; (5) unjust enrichment; and (6) conversion.
(FAC ¶¶ 31-56.)
moves to dismiss all of Lopez's claims for failure to
make specific allegations of misconduct as to Google. (Dkt.
No. 19 at 6-7.) Google also moves to dismiss Lopez's
trademark infringement, unfair competition, and copyright
infringement claims for failure to state a claim and
Lopez's claims for unjust enrichment and conversion for
either failure to state a claim or as preempted by the
Copyright Act. (Id. at 7-17.) The Court addresses
each argument before turning to Lopez's motion to file a
Second Amended Complaint.
Rule of Civil Procedure 8 requires that “[a] pleading
that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 does
not require “that a complaint be a model of clarity or
exhaustively present the facts alleged, ” Atuahene
v. City of Hartford, 10 F. App'x 33, 34 (2d Cir.
2001), but it should give the opposing party “fair
notice” of the claim to enable that party to answer and
prepare for trial, id. (quoting Ferro v. Ry.
Express Agency, Inc., 296 F.2d 847, 851 (2d Cir. 1961)).
A complaint may fail to meet this standard if it does not
sufficiently distinguish between multiple defendants, making
it impossible for any particular defendant ...