The opinion of the court was delivered by: Joel H. Slomsky, J.
AND NOW, this 15th day of December, 2008, in accordance with the rulings made during the record hearing held on December 4, 2008, it is hereby ORDERED that Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 41) is DENIED. In this Opinion, the Court provides further elaboration for denying the Motion to Dismiss the Second Amended Complaint.
Liko AB ("Plaintiff") brings this action against Rise Lifts, Inc., and Romedic, Inc. (collectively "Defendants"). Plaintiff manufactures, markets and sells patient lifts, transfer devices and slings for use in hospitals, healthcare facilities and private homes. Defendants also manufacture, market, sell and distribute patient lifts and slings for use in hospitals, health care facilities and private homes.
Plaintiff filed its First Amended Complaint on February 15, 2008, and oral argument was held on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint on May 18, 2008 before former Judge James T. Giles. On July 31, 2008, Judge Giles issued a Memorandum and Order requiring Plaintiff to amend the First Amended Complaint to more specifically set forth Plaintiff's causes of action. Count I of Plaintiff's First Amended Complaint alleged infringement of Federal Trademark Registration No. 3,213,621, "REPO SHEET;" Count II alleged infringement of Plaintiff's trade dress; Count III alleged false designation of origin in violation of 15 U.S.C. § 1125(a); and Count IV alleged common law unfair competition.
With respect to Count I, trademark infringement, Judge Giles, in his Order of July 31, 2008, required Plaintiff to "clarify what products Defendants are allegedly using that mark to advertise, and how the mark so advertises these products." Liko AB v. Rise lifts, Inc., 2008 U.S. Dist. LEXIS 58033, *15 (E.D. Pa. 2008) (Giles, J.). With respect to Count II, trade dress infringement, the Court ordered Plaintiff to replead Count II to meet the notice pleading requirement, and to "plead with greater clarity the trade dress at issue." Id. at *19. With respect to Counts III and IV, the Court required Plaintiff to amend those Counts, only to the extent required by the amendments to the first two Counts. The parties agree that the sufficiency of the latter two Counts is dependant upon the sufficiency of the first two Counts.
On August 20, 2008, Plaintiff filed its Second Amended Complaint (Doc. No. 41). Defendants filed a Motion to Dismiss the Second Amended Complaint on September 15, 2008 (Doc. No. 43). Oral argument was heard on Defendants' Motion to Dismiss the Second Amended Complaint, and Plaintiff's Response, on December 4, 2008.
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), courts must "'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (stating that this statement of the Rule 12(b)(6) standard remains acceptable following the U.S. Supreme Court's decision in Bell Atlantic Co. v. Twombly, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007)). To withstand a motion to dismiss under Rule 12(b)(6), "'[f]actual allegations must be enough to raise a right to relief above the speculative level.'" Id. at 232 (quoting Twombly, 127 S.Ct 12 1965). Thus, "'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element." Id. at 234 (quoting Twombly, 127 S.Ct. At 1965); see also Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 322 (following Phillips). This standard "simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965) (quotations omitted).
When deciding a motion to dismiss under Rule 12(b)(6), a court may properly consider the factual allegations contained in the complaint, exhibits attached thereto, documents referenced therein, matters of public record, and undisputedly authentic documents attached as exhibits to the defendants' motion to dismiss if the plaintiff's claims are based on those documents. Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994).
A. Count I: Trademark Infringement
In Count I, Plaintiff alleges that Defendants have infringed upon Plaintiff's trademark "REPO SHEET" by using this Mark on Defendants' website to advertise Defendants' products.
Plaintiff alleges that Defendants' use of Plaintiff's Mark is likely to cause confusion, cause mistake and deceive customers into believing that the products sold by Defendants originate from, or are ...