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Cambridge Pavers, inc. v. EP Henry Corp.

United States District Court, D. New Jersey

September 10, 2019

CAMBRIDGE PAVERS, INC., Plaintiff,
v.
EP HENRY CORPORATION, Defendant.

          OPINION

          Hon. Joseph H. Rodriguez, United States District Judge.

         This matter comes before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint [Dkt. No. 10]. The Court has considered the written submissions of the parties pursuant to Fed.R.Civ.P. 78 (b). For the reasons that follow, Defendant's motion is denied.

         I. Factual and Procedural Background

         Plaintiff, Cambridge Pavers, Inc. (“Plaintiff”), and Defendant, EP Henry Corporation (“Defendant”), are competing manufacturers of paving stones in the United States. [Dkt. No. 1 (Compl.) at ¶¶ 1, 13]. Plaintiff owns and uses the registered trademark, “ArmorTec” in the sale of its goods. Id. ¶¶ 5, 7. Its “products as promoted under its ArmorTec trademark are described as using a unique process. . . in order to maintain the rich color of the paving stones . . . and keep the surface smooth, yet skid resistant.” Id. ¶ 9. Plaintiff's paving stones are also promoted under the tagline “They'll Look Like New Forever.” Id. ¶10. In addition, Plaintiff owns a registered trademark for the tagline, “They'll Look Like New Forever” Cambridge Paving Stones with ArmorTec. Id. ¶11.

         “Defendant markets and sells paving stones with a protective coating under the name ColorTech.” Id. ¶ 13. According to Plaintiff, Defendant “recently launched a new marketing campaign using the mark ColorTech in order to directly and unfairly compete against Plaintiff's AmorTec branded products.” Id. ¶ 17. Defendant promotes its ColorTech paving stones as a line created through a “unique process” that “extends color fastness and durability” whose formula used in the manufacturing process creates a protective coating “resistant to staining, acid rain and UV rays.” Id. ¶¶ 14, 15.

         Plaintiff filed a Complaint in the present action against Defendant on September 21, 2018, alleging that Defendant's trademark is confusingly similar to Plaintiff's marks to deceive costumers in the sale and marketing of its paving stones. See Id. Specifically, Plaintiff claims violations of the Lanham Act for trademark infringement (Count I), false designation of origin, (Count II), and dilution (Count III); common law unfair competition (Count IV); and violations of the New Jersey Unfair Competition Act, N.J. Stat. Ann. § 56:4-1 (Count V), and New Jersey Trademark Act, N.J. Stat. Ann. § 56:3-13.16 (Count VI). Id.

         Defendant moved to dismiss all counts of Plaintiff's Complaint for failure to state a claim on November 13, 2018, pursuant to Fed. R. Civ. Pro. 12(b)(6). [Dckt. No. 10]. In support of its motion, Defendant argues that Plaintiff's trademark is a descriptive, weak mark, entitled to limited protection; and ultimately contends that there is no likelihood of confusion between the competing marks. [Dkt No. 10-1 (Def. Brf.)]. Plaintiff filed a brief in opposition to Defendant's motion on December 3, 2018 [Dkt. No. 11 (Pl. Brf.)], to which Defendant filed a reply on December 10, 2018. [Dkt No. 12].

         II. Standard of Review

         Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a claim based on “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss pursuant to Rule 12(b)(6), ordinarily only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration. See Chester County Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (2007). Instead, the Court simply asks whether the plaintiff has articulated “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[1] 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) (citing Twombly, 550 U.S. at 556). “Where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

         Thus, a motion to dismiss should be granted unless the plaintiff's factual allegations are “enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true (even if doubtful in fact).” Twombly, 550 U.S. at 556 (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         III. Analysis

         A. Trademark Infringement and False Designation of Origin under the Lanham Act

         “Congress enacted the Lanham Act in 1946 in order to provide national protection for trademarks used in interstate and foreign commerce.” Park ‘N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 193 (1985). The Third Circuit has made clear that an “identical” standard is used to measure federal unfair competition under Section 43 of the Lanham Act, 15 U.S.C. § 1125(a) and federal trademark infringement under Section 32, 15 U.S.C. ...


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