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Mills v. Alphabet Inc.

United States District Court, S.D. New York

March 28, 2018

NIJO MILLS, Plaintiff,
ALPHABET INC., et al., Defendants.

          Nijo Mills New York, New York Pro Se Plaintiff

          Jason B. Mollick Wilson Sonsini Goodrich & Rosati, P.C. New York, New York Counsel for Defendant Alphabet Inc.

          Jennifer Philbrick McArdle Satterlee Stephens LLP New York, New York Counsel for Defendant Cengage Learning Holdings II, Inc.

          OPINION & ORDER


         Pro se Plaintiff Nijo Mills brings this action against Alphabet Inc. (“Alphabet”) and Cengage Learning Holdings II, Inc. (“Cengage”) (collectively, “Defendants”), asserting claims for trademark infringement in violation of the Lanham Act, 15 U.S.C. § 1051, et seq., copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101, et seq., intentional and negligent infliction of emotional distress, unjust enrichment, violation of the Federal Trade Commission Act (the “FTC Act”), 15 U.S.C. § 41, et seq., and violation of the New York Arts and Cultural Affairs law (“NYACAL”). (Doc. 17.) Currently before me is Defendants' motion to dismiss all of Plaintiff s claims. (Doc. 32.) Because Plaintiff has demonstrated no trademark rights to the names “google” or “alphabet, ” did not register what he claims is his logo with the United States Copyright Office before filing suit, asserts claims for emotional distress and unjust enrichment that are preempted by the Copyright Act, and because the FTC Act does not create a private right of action and the NYACAL is inapplicable to the allegations in this case, Defendants' motion to dismiss is GRANTED.

         I. Background[1]

         Plaintiff asserts that on January 5, 1996, at his residence on the island of Saint Thomas in the United States Virgin Islands, he decided to develop a website that would include innovative features including an Internet search engine. (Am. Compl. ¶¶ 9, 12, 14.)[2] After brainstorming the idea for his website, Plaintiff sought to come up with a name for the product. (Id. ¶ 10.) Plaintiff states that he first thought of the word “goggles” because “many people and computer enthusiasts wore spectacles.” (Id.) Next, Plaintiff thought of the word “doodle” in order to attract members of the general public who might not have a particular interest in computers. (Id. ¶ 11.) Ultimately, Plaintiff decided to combine the two words, thereby arriving at the name “google.” (Id.)

         Later that day, Plaintiff claims that he began to design a logo for the website on a piece of paper. (Id. ¶¶ 12, 14.) Plaintiff alleges that the drawing combined the name “google” with a picture of a radio, a guitar, and the phrase “What if the whole world ROCKED!” (Id. ¶¶ 14-17, Ex. A.) Plaintiff states that the homonym “rock” meant rock and roll, but also referred to the island of Saint Thomas, which is nicknamed “the rock.” (Id. ¶ 17.) On the back of the paper, Plaintiff purportedly rewrote the name “google” in pencil and designated specific colors for each letter of the word. (Id. ¶ 18.) Plaintiff contends that he also came up with the alternative name “alphabet” for his website. (Id. ¶ 20.)

         Plaintiff maintains that when he came up with the names “google” and “alphabet” and created the logo, an unnamed individual, identified in the Amended Complaint as “Individual 1, ” was with Plaintiff in his apartment. (Id.) Soon after Plaintiff had created the logo, developed a color scheme for it, and written the word “google” on both sides of the paper, Individual 1 stole the paper and took it to a nearby parking lot. (Id. ¶ 24.) Plaintiff states that three unnamed co-conspirators were waiting for Individual 1 in a car in the parking lot. (Id.) Individual 1 then showed the piece of paper to the co-conspirators, at which point they all shook hands and drove away. (Id.)

         Plaintiff says he first learned about Google, Inc. and its search engine in 2002 while taking pre-college courses at Bronx Community College.[3] (Id. ¶ 27.) Plaintiff “automatically knew it was the name [he] invented” and that Google had “violated trademark laws by willfully using an unauthorized trademark as a brand, logo, and domain name for their company.” (Id.) Plaintiff complains that Alphabet and Google used Plaintiff's exact name, colors, and design for its logo without Plaintiff's consent or authorization. (Id. ¶ 23.)

         Plaintiff further contends that in September 2013 he saw an unauthorized reproduction of his purported logo in a book published by Cengage, titled “Management 10th Edition, ” that he purchased at the Bronx Community College bookstore. (Id. ¶¶ 29-30.) Plaintiff claims that seeing the image caused him anxiety and other emotional distress. (Id. ¶¶ 26, 28, 31, 32, 39.) Plaintiff alleges that the book indicated that the original drawing of the logo was sited at the Doodle Museum, located at Google's headquarters in Mountain View, California. (Id. ¶ 33.)

         II. Procedural History

         On May 6, 2016, Plaintiff filed a Complaint against Alphabet in New York state court. (Doc. 1-1.) The Complaint consisted of a single sentence alleging that Alphabet was liable for $24, 000, with interest, based on “copyright infringement” and “emotional distress.” (Id.) On June 20, 2016, Alphabet removed the Complaint to this Court based on the existence of a federal question under the Copyright Act. (Doc. 1.)

         On June 27, 2016, Alphabet filed a letter requesting leave to file a motion to dismiss Plaintiffs Complaint. (Doc. 7.) I directed the parties to appear for a pre-motion conference on August 26, 2016. (Doc. 11.) Prior to the conference, on August 17, 2016, Plaintiff filed a motion to amend his pleading. (Doc. 12.) On August 23, 2016, Alphabet responded with a supplemental letter arguing that Plaintiff s proposed amended causes of action were implausible and failed to state a claim. (Doc. 13.) At the pre-motion conference, I granted Plaintiffs request to file an amended complaint.

         On October 25, 2016, Plaintiff filed his Amended Complaint, adding Cengage as a Defendant. (Doc. 17.) On March 8, 2017, Plaintiff submitted an application to proceed in forma pauperis. (Doc. 19.) On March 9, 2017, Alphabet indicated that it did not oppose the request, (Doc. 20), and I granted it, (Doc. 21). In its March 9 letter, Alphabet also requested that I dismiss the Amended Complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B). (Doc. 20.) On March 24, 2017, counsel for Cengage appeared in the case, (Doc. 22), and filed a letter indicating that Cengage would join in the letter request filed by Alphabet for dismissal sua sponte, (Doc. 23). On March 30, 2017, Plaintiff filed a letter in opposition to Defendants' request to dismiss the Amended Complaint sua sponte and requesting an opportunity to respond. (Doc. 24.) On April 3, 2017, I declined to dismiss the Amended Complaint sua sponte and instructed Defendants to file pre-motion letters in anticipation of their motions to dismiss the Amended Complaint. (Doc. 26.)

         On April 21, 2017, Defendants filed their pre-motion letters, (Docs. 28, 29), and on May 12, 2017 Plaintiff submitted a letter in opposition, (Doc. 30). On May 16, 2017, I again declined to dismiss this action sua sponte, but granted Defendants' request to file their motions to dismiss. (Doc. 31.)

         On June 9, 2017, Alphabet filed its motion to dismiss, (Doc. 32), along with a memorandum in support, (Doc. 33), and a request for judicial notice with exhibits, (Doc. 34). On June 9, 2017, Cengage filed a notice of joinder in Alphabet's motion to dismiss. (Doc. 35.) On July 31, 2017, Plaintiff filed an opposition to the motion, (Doc. 36), along with a declaration in support, (Doc. 37). On August 18, 2017, Alphabet filed a reply, (Doc. 38), along with a supplemental request for judicial notice with exhibits, [4] (Doc. 39). On August 18, 2017, Cengage filed a reply in further support of its notice of joinder in Alphabet's motion to dismiss, (Doc. 41), at which point the motion was fully briefed.

         III. Legal Standards

         A. Rule 12(b)(6)

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim will have “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.” Id. This standard demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff s inferences unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).

         In considering a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the complaint and must draw all reasonable inferences in the plaintiffs favor. Kassner v. 2nd Ave. Delicatessen Inc.,496 F.3d 229, 237 (2d Cir. 2007). A complaint need not make “detailed factual allegations, ” but it must contain more than mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Finally, ...

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