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Moose Mountain Toymakers v. Majik Ltd.

August 12, 2011


The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh




This matter comes before the Court upon the motion of Defendants East Point Sports, LLC and Majik, Ltd., LLC ("Defendants") for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). No oral argument was heard under Rule 78. For the reasons stated below, Defendants' motion is GRANTED.

I. BACKGROUND*fn1 Plaintiffs Moose Mountain Toymakers Ltd. and Moose Mountain Marketing, Inc. ("Plaintiffs") design, manufacture and distribute the Arcade Alley® Bowlercade® game ("Bowlercade"), which is a toy bowling game. Bowlercade is protected by Patent No. D497,187 (the "'187 Patent") and Patent No. D520,067 (the "'067 Patent"), both of which cover the ornamental appearance of the game. Moose Mountain Toymakers Ltd. is the owner of the entire right, title and interest in the '187 and '067 Patents. Moose Mountain Marketing, Inc. is the exclusive licensee of both patents.

Plaintiffs claim that Defendants knowingly misappropriated key distinguishing features of Bowlercade to make the Majik Bowl game ("Majik Bowl"), a nearly identical bowling game. Accordingly, Plaintiffs assert claims for infringment of the '187 and '067 Patents. In addition to infringing upon Plaintiffs' patents, Plaintiffs also allege that Defendants "interfered with the relationship between [a] specific retailer and Moose Mountain, and agreed to manufacture and supply retailers, including the specific retailer, with the Majik Bowl game, at a price that would undercut the price of [Bowlercade]." Compl. ¶¶ 47-49. Accordingly, Plaintiffs also bring claims for Tortious Interference with Prospective Economic Advantage, Unfair Competition in Violation of N.J.S.A. §§ 56:4-1 et seq., Common Law Unfair Competition and Unjust Enrichment.


Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings after the pleadings are closed. To succeed on such a motion, the moving party must show that "no material issue of fact remains to be resolved and that [the moving party] is entitled to judgment as a matter of law." Rosenau v. Unifund Corp., 538 F.3d 218, 221 (3d Cir. 2008) (quoting Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988) (internal quotation marks omitted)).

As in a motion to dismiss for failure to state a claim, in deciding a motion for judgment on the pleadings, all allegations in the complaint must be taken as true and viewed in the light most favorable to the plaintiff. See Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). Moreover, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the plaintiff's claims are based upon those documents. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). "In the design patent context, the facts alleged in the Complaint include the patent and the pictures of the infringing products." Cotapaxi Custom Design and Mfg., LLC v. Corporate Edge, Inc., No. 06-5183, 2007 WL 2908265, at *4 (D.N.J. Oct. 1, 2007). The review of these documents is "sufficient for this Court to determine if 'it appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of his claim which would be entitled to relief." Id. (quoting Hughes v. Rowe, 449 U.S. 5, 19 (1980)).


Patent Infringement Claims

The Court must engage in a two-step analysis to determine whether Defendants have infringed on Plaintiffs' Patents. First, the design patent must be properly construed, as a matter of law. Cotapaxi, 2007 WL 2908265, at *3. "Second, the patented design must be compared to the alleged infringing product in order to determine whether or not it infringes the design patent." Id. Specifically, the Court must apply the ordinary observer test to determine "whether an ordinary observer, familiar with the prior art designs, would be deceived into believing that the accused product is the same as the patented design." Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1295 (Fed. Cir. 2010) (noting that "the 'ordinary observer' test should be the sole test for determining whether a design patent has been infringed" (citation and internal quotation marks omitted)). This is a question of fact that the patentee must establish. Id.

A. Claim Construction

The '187 and '067 Patents are each titled "Bowling Claim". Schoenberg ...

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