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Lopez v. Bigcommerce, Inc.

United States District Court, S.D. New York

August 1, 2017

ROBERT G. LOPEZ, Plaintiff,


          J. PAUL OETKEN United States District Judge.

         Robert 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.

         I. Background

         The following facts are taken from the operative complaint and are presumed true for the purposes of this motion.

         This action was initially commenced against both BigCommerce[1] 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.

         According 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 ¶ 23.)

         Lopez 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. 18.)

         II. Motion to Dismiss

         A. Legal Standard

         In 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)).

         B. Discussion

         Lopez 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.)

         Google 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.

         1.Specific Allegations

         Federal 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 ...

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