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Amerigas Propane, L.P v. Corp. D/B/A Pissedconsumer.Com

June 19, 2012


The opinion of the court was delivered by: Buckwalter, S.J.



Defendant Opinion Corp. d/b/a ("Defendant") has filed the present Motion to Dismiss the Complaint of Plaintiff Amerigas Propane, L.P. ("Plaintiff") for Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motion is granted in part and denied part as set forth in the accompanying Order.


Plaintiff, a Pennsylvania limited partnership, is in the business of distributing propane. (Compl. ¶¶ 3, 9.) In connection with this business, Plaintiff owns a trademark registration for "AMERIGAS." (Id. ¶ 10.) Defendant, a New York corporation, owns and operates a website called "," which allows individuals to post complaints concerning various products and services they have used. (Id. ¶¶ 13-18.) According to the facts alleged in the Complaint, Defendant "encourages and creates the most negative postings it can on the PissedConsumer website, displays those postings as prominently on the Internet as possible, and relates those postings as closely as possible to the companies' brand names." (Id. ¶ 20.) Once these reviews are posted, Defendant uses them as an incentive to compel businesses to pay to have negative complaints hidden, removed, or changed into positive testimonials. (Id. ¶¶ 20-21.) According to Plaintiff, Defendant refuses to reveal the identity of those who post complaints, leaving Plaintiff unable to determine whether the reviews are submitted by actual consumers, competitors, or Defendant itself. (Id. ¶ 26.)

Plaintiff alleges that Defendant has used the "AMERIGAS" trademark in one of its website's subdomains- in the metadata*fn1 associated with the website. (Id. ¶¶ 27-30.) Furthermore, the website contains numerous advertisements-including those of Plaintiff's competitors-alongside a description of Plaintiff's business and the services it offers. (Id. ¶¶ 32-33.) According to Plaintiff, its competitors' advertisements are "displayed in a cluttered fashion and used in connection with AmeriGas's trademark," and so consumers are likely to be confused into believing that these advertisements are in some way associated with Plaintiff. (Id. ¶ 35.) Defendant is able to profit from these advertisements via Google's "AdWords" program, which generates revenue every time a user clicks on one of the ads. (Id. ¶ 34.)

Plaintiff next alleges that Defendant engages in improper "search engine optimization"*fn2 techniques in an effort to make its website more prominent and accessible on search engines such as Google. (Id. ¶¶ 38-42.) Specifically, Defendant has purportedly purchased hundreds of domain names that link to its own website, created numerous subdomains that interlink to each other, made excessive use of brand name "keywords" to increase its own website's relevance, reposted identical consumer complaints to create the impression that they are new content, and created Twitter accounts that link to Defendant's website without providing any other content. (Id. ¶ 40.) As a result of these tactics, Defendant's website now appears among the first several results when an Internet user types "AmeriGas" into a Google search, despite the fact that Defendant's page offers little, if any, content related to Plaintiff and its services. (Id. ¶ 38.)

When Plaintiff became concerned about the impact of the negative reviews posted on, it contacted Defendant to discuss PissedConsumer's "reputation management services." (Id. ¶¶ 43-46.) These services purportedly offered Plaintiff the opportunity to address the complaints, or even have negative reviews removed from Defendant's website altogether. (Id. ¶ 53.) In January 2011, Defendant told Plaintiff it would not be able to discuss the matter until the following month, but Defendant never contacted Plaintiff to engage in such a discussion. (Id. ¶¶ 46-47.) Plaintiff then attempted to respond directly to the complaints by posting its own messages on Defendant's page, but found that Defendant blocked Plaintiff's computers from accessing the website. (Id. ¶¶ 48-49.)

Plaintiff filed its Complaint in this Court on February 9, 2012, alleging the following: (I) trademark infringement, unfair competition, and false designation of origin in violation of 15 U.S.C. §§ 1114 & 1125(a); (II) common law trademark infringement, unfair competition, and false designation of origin; (III) dilution of Plaintiff's "AMERIGAS" mark in violation of 15 U.S.C. § 1125(c); (IV) violations of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. § 201-1, et seq. ("the UTPCPL"); (V) interference with contractual and prospective contractual relations; (VI) unjust enrichment; and (VII) trademark counterfeiting in violation of the Lanham Act. (Compl. ¶¶ 54-111.) Plaintiff seeks preliminary and permanent injunctive relief; actual, compensatory, and punitive damages; and costs, attorneys' fees, and treble and statutory damages pursuant to 15 U.S.C. § 1117. (Compl. 19-20 ("Prayer for Relief").)

Defendant filed the present Motion to Dismiss on April 2, 2012. On April 19, 2012, Plaintiff filed its Response in Opposition, and Defendant filed a Reply Brief on April 27, 2012. The Motion is now ripe for the Court's consideration.


Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. It emphasized that it would not require a "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In the subsequent case of Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court enunciated two fundamental principles applicable to a court's review of a motion to dismiss for failure to state a claim. First, it noted that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Thus, although "[Federal] Rule [of Civil Procedure] 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. Second, the Supreme Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Notwithstanding the foregoing, nothing in Twombly or Iqbal has altered some of the fundamental underpinnings of the Rule 12(b)(6) standard of review. Arner v. PGT Trucking, Inc., No. Civ.A.09-0565, 2010 WL 1052953, at *2 (W.D. Pa. Mar. 22, 2010); Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-0626, 2008 WL 2779079, at *2 (W.D. Pa. July 15, 2008). Federal Rule of Civil Procedure 8 requires only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations. Fed. R. Civ. P. 8; Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Further, the court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).


Defendant first moves to dismiss Counts I, II, III, IV, and VII of the Complaint-which sound in trademark infringement and unfair competition-on the basis that Plaintiff failed to allege sufficient facts to sustain these claims. Second, Defendant contends that Counts IV, V, and VI-which are Pennsylvania state law claims-should be dismissed pursuant to the Communications Decency Act, 47 U.S.C. § 230. The Court considers Defendant's two arguments separately.*fn3

A. Whether Plaintiff has Stated a Claim for Trademark Infringement and Unfair Competition

The purpose of the Lanham Act, 15 U.S.C. §§ 1051, et. seq., is "to make 'actionable the deceptive and misleading use of marks' and 'to protect persons engaged in . . . commerce against unfair competition.'" Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 767-68 (1992) (quoting 15 U.S.C. § 1127). Count I of Plaintiff's Complaint alleges trademark infringement, unfair competition, and false designation of origin in violation of 15 U.S.C. § 1114*fn4 and § 1125(a).*fn5 In order to state a claim under these sections of the Lanham Act, a plaintiff must demonstrate: "(1) the mark is valid and legally protectable; (2) it owns the mark; and (3) the defendant's use of the mark is likely to create confusion concerning the origin of goods or services." Del. Valley Fin. Grp., Inc. v. Principal Life Ins. Co., 640 F. Supp. 2d 603, 619 (E.D. Pa. 2009) (citing Urban Outfitters, Inc. v. BCBG Max Azria Grp., Inc., 318 F. App'x 146, 148 (3d Cir. 2009)). "A likelihood of confusion exists when 'consumers viewing the mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark.'" A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198, 211 (3d Cir. 2000) (quoting Dranoff-Perlstein Assocs. v. Sklar, 967 F.2d 852, 862 (3d Cir. 1992)). When the plaintiff and the defendant's goods do not compete with each other, the Third Circuit Court of Appeals has set forth a list of ten factors that district courts should consider when determining whether a likelihood of confusion exists:

"(1) the degree of similarity between the owner's mark and the alleged infringing mark; (2) the strength of the owner's mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark; (6) the evidence of actual confusion; (7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media;

(8) the extent to which the targets of the parties' sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of the similarity of function; (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in ...

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