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Fagnelli Plumbing Co., Inc. v. Gillece Plumbing and Heating

July 27, 2010


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge


I. Introduction

Plaintiff, Fagnelli Plumbing Company, Inc., instituted the present action against Defendants, Gillece Plumbing and Heating Inc. ("Gillece Plumbing")*fn1 Gillece Services, LP ("Gillece Services")*fn2 Thomas Gillece,*fn3 and Joseph Benz,*fn4 (collectively, "Defendants") on May 18, 2010. (Doc. No. 1). Plaintiff alleges Defendants improperly registered the domain name "" in violation of sections 43(a) and (d) of the Lanham Act, 15 U.S.C. §§ 1125(a) and (d), and Pennsylvania common law. Before this Court are Defendants' Motions to Dismiss Plaintiff's Complaint (Doc. Nos. 13, 14, 15, and 16) for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P.12(b)(6). For the reasons stated below, Defendant Gillece Plumbing's motion to dismiss is denied, and Defendants Gillece Services, Thomas Gillece, and Joseph Benz's motions to dismiss are granted in part and denied in part.

II. Facts Averred in Complaint

Plaintiff and Defendant Gillece Plumbing are business competitors who both provide plumbing, heating, and cooling services to residential and commercial customers in Western Pennsylvania. (Doc. No. 1 ¶ 10). In an effort to advertise and increase profits, Plaintiff purchased and registered the domain name "" (""), which is a website that offers Plaintiff's services to prospective customers. Id. at ¶ 11. On March 1, 2007, Defendant Gillece Plumbing registered the domain name "" ("") through the online registrar, Inc. Id. at ¶ 13. On February 12, 2009, Defendant Gillece Plumbing began to divert internet traffic visiting to "" (""), a website that advertises and offers Defendant Gillece Plumbing's services to prospective customers. Id. at ¶¶ 12, 16-17.

After discovering, Plaintiff sent a cease and desist letter to Defendants, requesting that Defendants refrain from redirecting traffic from to, and "transfer ownership and registration" of to the Plaintiff. Id. at ¶ 18. In response to Plaintiff's request, Defendants ceased redirecting internet traffic from to, but refused to transfer ownership and registration of to the Plaintiff. Id. at ¶¶ 19-20.

III. Discussion

Pursuant to Fed. R. Civ. P. 12(b)(6), this Court is required to dismiss a complaint when it fails to allege ""enough facts to state a claim to relief that is plausible on its face.'" Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Previously, under the Supreme Court's holding in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), a claim could only be dismissed when "no set of facts" could support the plaintiff's contentions. However, under the Supreme Court's recent holdings in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), a plaintiff cannot merely assert legal conclusions or recite "the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S.Ct. at 1949. Rather, the plaintiff must assert a facially plausible claim by pleading "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556).

Although the plausibility standard is dissimilar to a "probability requirement," "it [requires] more than a sheer possibility that a defendant has acted unlawfully." Id. While well-pleaded factual content is accepted as true, legal conclusions couched as factual allegations or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to an assumption of truth. Marangos v. Swett, 341 Fed. Appx. 752, 755 (3d Cir. 2000) (quoting Iqbal, 129 S.Ct. at 1949). "[W]here the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged -- but it has not "show[n]' -- "that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).

In order to satisfy the requirement of Fed. R. Civ. P. 8(a)(2) that a plaintiff include a "short and plain statement of the claim showing that the pleader is entitled to relief," a plaintiff must aver sufficient factual allegations to "nudge" its claims "across the line from conceivable to plausible." Iqbal, 129 S.Ct. at 1951.

When evaluating a Rule 12(b)(6) motion, this Court accepts the plaintiff's well-pleaded factual allegations as true, and construes all reasonable inferences in the light most favorable to the plaintiff. Umland v. Planco Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008) (citing Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006)). However, this Court cannot consider bald assertions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n.8 (3d Cir. 1997). Nor should a court consider "whether a plaintiff will ultimately prevail," but rather, must decide "whether the [plaintiff] is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

Therefore, a plaintiff must put forth sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. See Wilkerson v. New Media Tech. Charter Sch., Inc., 552 F.3d 315 (3d Cir. 2008) (citing Phillips, 515 F.3d at 224). However, this standard does not impose a heightened burden on the claimant above that already required by Rule 8, but instead calls for fair notice of the factual basis of a claim while "rais[ing] a reasonable expectation that discovery will reveal evidence of the necessary element." Weaver v. UPMC, Civ. A. No. 08-411, 2008 U.S. Dist. LEXIS 57988 at *7 (W.D. Pa. July 30, 2008) (citing Phillips, 515 F.3d at 234; and Twombly, 550 U.S. at 555).

IV. Application

Plaintiff alleges three separate claims against Defendants: (1) at Count One, Cybersquatting in violation of 15 U.S.C. § 1125(d); (2) at Count Two, Misleading Description in violation of 15 U.S.C. § 1125(a)(1)(A); and, (3) at Count Three, Pennsylvania Common Law Service Mark Infringement and Unfair Competition. The parties agree that Plaintiff's common law claims for trademark infringement and unfair competition are governed by the standard set forth in 15 U.S.C. § 1125(a). See A & H Sportswear Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198, 210 (3d Cir. 2000) (holding federal trademark infringement and unfair competition claims are measured by identical standards); see also Kos Pharms. V. Andrx Corp., 369 F.2d 700, 706, 708-09 (3d Cir. 2004) (evaluating federal and common law ...

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