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Advanced Baseball Academy, LLC v. Google, Inc.

United States District Court, D. Kansas

March 30, 2015

GOOGLE, INC., et al., Defendants.


CARLOS MURGUIA, District Judge.

Plaintiff Advanced Baseball Academy ("plaintiff") filed this trademark action against defendants Google, Inc.; Gold Glove Baseball Academy LLC; Gold Glove Baseball and Softball; and Gold Line Apparel ("defendants"). Plaintiff initially brought various Lanham Act trademark claims, including trademark infringement, false designation of origin, and unfair competition; a claim for copyright infringement; and two Kansas common law claims for unfair competition and trademark infringement. According to plaintiff, these claims all relate to defendants' alleged infringement of plaintiff's logo ("LOGO MARK") and the words "Gold Glove Boot Camp" ("WORD MARK"). After filing the case, plaintiff dismissed Google, Inc. as a defendant, and also dismissed its copyright claim. The case is now before the court on defendants' Motion to Dismiss plaintiff's First Amended Complaint or, alternatively, to Require a More Definite Statement (Doc. 8).

Defendants argue that they are entitled to dismissal of this case for two reasons: (1) Plaintiff cannot recover for infringement of the LOGO MARK because defendants used the logo before plaintiff did; and (2) The WORD MARK is such a generic term that, as a matter of law, there is no risk of consumer confusion. The court addresses these arguments below, and ultimately denies defendants' motion to dismiss.


The court will grant a 12(b)(6) motion to dismiss only when the factual allegations fail to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the factual allegations need not be detailed, the claims must set forth entitlement to relief "through more than labels, conclusions and a formulaic recitation of the elements of a cause of action." In re Motor Fuel Temperature Sales Practices Litig., 534 F.Supp.2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is plausible, rather than merely conceivable. Id.

"All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court construes any reasonable inferences from these facts in favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). In reviewing the sufficiency of a complaint, the court determines whether the plaintiff is entitled to offer evidence to support its claims-not whether the plaintiff will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).

Where dismissal is improper, a court may still require a more definite statement under Rule 12(e) if a pleading is "so vague or ambiguous that the party cannot reasonably prepare a response." Fed.R.Civ.P. 12(e). This is a demanding standard that requires a pleading be so incoherent that it is impossible to identify a "bas[is] for jurisdiction and relief." Crisler v. Sedgwick Cnty., 490 F.Appx. 983, 985 (10th Cir. 2012). Where a party can identify the issues in a pleading that require a response, a motion for a more definite statement is generally disfavored because the federal rules provide liberal discovery mechanisms for filling in any remaining informational gaps. Resolution Trust Corp. v. Thomas, 837 F.Supp. 354, 355 (D. Kan. 1993).


The following facts are taken from plaintiff's First Amended Complaint and viewed in the light most favorable to plaintiff.

Plaintiff operates a baseball and softball training facility in the Kansas City area. Defendants own and operate a competing baseball facility and an athletic-clothing business. Plaintiff uses a logo that features the letters "GG" with one "G" turned inward to face the other "G" (LOGO MARK). Plaintiff also promotes its services using the term "Gold Glove Boot Camp" (WORD MARK).

Plaintiff alleges that defendants have used plaintiff's same LOGO MARK on the internet and in advertisements. Plaintiff also alleges that defendants' use of the terms "Gold Glove KC" and "Gold Glove Academy" infringe on plaintiff's WORD MARK.


Plaintiff asserts several trademark infringement claims under the Lanham Act and Kansas Law. Though different in name, all of these claims share the same essential elements: "(1) that the plaintiff has a protectable interest in the mark; (2) that the defendant has used an identical or similar mark in commerce; and (3) that the defendant's use is likely to confuse consumers." 1-800 Contacts, Inc. v., Inc., 722 F.3d 1229, 1242 (10th Cir. 2013); see also Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 780 (1992) (Stevens, J., concurring in result) (noting that "[t]oday, it is less significant whether the infringement falls under false designation of origin' or false description or representation' because in either case [15 U.S.C. ยง 1125(a)] may be invoked."); Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1050 (10th Cir. 2008) (explaining that Lanham Act claims for trademark infringement and unfair competition "have virtually identical elements and are properly addressed together"); Am. Plastic Equip., Inc. v. Toytrackerz, LLC, No. 07-2253-DJW, 2008 WL 917635, at *8, *12 (D. Kan. Mar. 31, 2008) (clarifying that "[t]he Kansas Trademark Act is the state counterpart of the Lanham Act, and... construction given the federal act should be examined as persuasive authority for interpreting" the Kansas Act, especially because "[t]he elements of proof under both legal theories are identical"); Polo Fashions, Inc. v. Diebolt, Inc., 634 F.Supp. 786, 790 (D. Kan. 1986) (instructing that "the essential element of a claim of unfair competition is the same as that for the infringement and false designation of origin claims.").

Here, plaintiff brings claims for infringement of two allegedly protected Marks: the LOGO MARK (an image with the letters "GG" in the middle), and the WORD MARK (the words: "Gold Glove Boot Camp"). While defendants seek to dismiss plaintiff's infringement claims for both Marks, defendants raise different arguments against the different infringement claims.

Specifically, defendants seek dismissal of the LOGO MARK claims based on plaintiff's alleged lack of a protected interest in the Mark. Defendants claim that plaintiff lacks priority rights to the LOGO MARK because defendants used the logo before plaintiff did. To support this argument, defendants attached documents and historical materials as exhibits to their motion to dismiss. (Doc. 8-1; 8-2.) Defendants argue that these materials show that plaintiff lacks a plausible claim and, therefore, cannot survive a Rule 12(b)(6) motion to dismiss.

Regarding the WORD MARK claims, defendants seek dismissal based on the consumer confusion and protected interest elements. According to defendants, there is no risk of consumer confusion because "Gold Glove" is a common, generic baseball term. (Doc. 8 at 6-7.) Defendants contend that, as a matter of law, the WORD MARK lacks a distinct connection to plaintiff, and there is no risk of confusion because the term is familiar to consumers.

The court denies defendants' motion to dismiss and the alternative motion for a more definite statement for three reasons. First, regarding the LOGO MARK claims, plaintiff has alleged sufficient facts to state a plausible infringement claim and comply with the pleading requirements under Fed.R.Civ.P. 8(a). Second, defendants have not shown as a matter of law that their "prior use" claim justifies dismissal of the LOGO MARK claims. Finally, regarding the WORD MARK claims, ...

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