United States District Court, D. Kansas
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
This matter comes before the Court on defendant's motion to dismiss the claims pleaded by plaintiff in Counts I, II, IV, V, and VII of the complaint (Doc. # 18). For the reasons set forth below, the motion is granted in part and denied in part. The motion is granted to the extent that any claim by plaintiff for punitive damages asserted as an independent cause of action is hereby dismissed; the motion is otherwise denied.
Plaintiff Marten Transport, Ltd. alleges the following facts in its complaint against defendant Plattform Advertising, Inc. Plaintiff is a motor carrier providing transportation services, with its headquarters in Wisconsin. Defendant, a Kansas corporation, operates two websites that advertise open driver positions on behalf of commercial trucking companies, and interested individuals may submit job applications for such positions through the sites. From June 2010 through May 2012, plaintiff paid defendant to advertise job openings, and plaintiff authorized defendant to use its identifying information and registered trademarks in advertising such openings. Plaintiff terminated that relationship in May 2012, after which time defendant was no longer authorized to advertise on plaintiff's behalf or to use plaintiff's identifying information and trademarks. Nevertheless, defendant has continued to use plaintiff's information and trademarks on its own websites and on another site. Defendant has not directed any interested applicants to plaintiff since May 2012, but instead has directed them to defendant's own sites.
Plaintiff initiated the present action in September 2014. By its complaint, plaintiff asserts the following claims against defendant: federal trademark infringe-ment, in violation of the Lanham Act, 15 U.S.C. § 1114 (Count I); unfair competition, in violation of the Lanham Act, 15 U.S.C. § 1125(a) (Count II); unauthorized use of identifying information, in violation of Wisconsin statutes (Count III); common-law trademark infringement (Count IV); common-law unfair competition (Count V); and tortious interference with prospective contractual relationships (Count VI). Plaintiff requests damages, injunctive relief, and attorney fees. In addition, in a separate count plaintiff asserts a claim for punitive damages under Wis.Stat. § 895.043 (Count VII).
Defendant seeks dismissal of Counts I, II, IV, V, and VII pursuant to Fed.R.Civ.P. 12(b)(6). The Court will dismiss a cause of action for failure to state a claim only when the factual allegations fail to "state a claim to relief that is plausible on its face, " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326 (1989). The complaint need not contain detailed factual allegations, but a plaintiff's obligation to provide the grounds of entitlement to relief requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. See Bell Atlantic, 550 U.S. at 555. The Court must accept the facts alleged in the complaint as true, even if doubtful in fact, see id., and view all reasonable inferences from those facts in favor of the plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Viewed as such, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Defendant seeks dismissal of plaintiff's claims under the Lanham Act, 15 U.S.C. §§ 1114, 1125(a). Section 1114 provides for liability if a person without consent uses in commerce a registered mark "in connection with the sale, offering for sale, distribution, or advertising of any goods or services" if such use is likely to cause confusion. See 15 U.S.C. § 1114(1)(a). Section 1125(a) provides for liability of the following:
Any person who, on or in connection with any goods or services, or any container of goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities.
See 15 U.S.C. § 1125(a)(1). Defendant argues that plaintiff cannot state a claim under either of these sections because the job opportunities that it advertises do not constitute goods or services.
The Court rejects this argument. The statutes require use of the information or mark "in connection with" the sale or advertising of any goods or services, see 15 U.S.C. § 1114(1)(a), and "in connection with" any goods or services, see 15 U.S.C. § 1125(a)(1). In this case, plaintiff has alleged that defendant, as its business, matched job applicants with trucking companies that had open positions, and that defendant used plaintiff's information and marks in advertising such openings and plaintiff's business. Thus, applying the plain and ordinary meaning of the terms in the statute, the Court concludes without hesitation that plaintiff has alleged use by defendant in connection with a service that it provides to applicants and trucking companies. Defendant has not even attempted to explain why its business does not provide a service in commerce.
Defendant appears to support this argument solely by citation to a single case, Amin v. SunTrust Bank, 2014 WL 3397256 (N.D. Ill. July 11, 2014). In that case, the plaintiff responded to an e-mail advertising an independent contractor position; was told that he was accepted; followed instructions to deposit checks into and make payments out of his own bank account; and suffered losses when the checks he received did not clear. See id. at *1-2. The district court dismissed the plaintiff's claims under Section 1125(a) of the Lanham Act, reasoning as follows:
[T]he conduct complained of here had nothing to do with a "false description of goods and their origins." Rather, [the plaintiff] complains of a fraudulent scheme involving an opportunity for employment. That is neither a "good" nor a "service, " and thus does not fall under the protections of the Lanham Act.
See id. at *3 (citations omitted). That case is easily distinguished from the present case, however. Amin involved a fraudulent offer of employment, and the court concluded that such an offer was not a "good" or a "service" under the Act. The present case, on the other hand, involves the alleged misuse of information in the defendant's business of ...