Case 2:15-cv-07980-DDP-JPR Document 31 Filed 12/15/15 Page 1 of 14 Page ID #:229
`
`O
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. CV 15-07980 DDP (JPRx)
`ORDER DENYING MOTION TO DISMISS
`[Dkt. No. 25]
`
`))))))))))
`
`DC COMICS,
`
`Plaintiff,
`
`v.
`MAD ENGINE, INC.,
`Defendant.
`___________________________
`
`Presently before the Court is Defendant Mad Engine’s Motion to
`Dismiss. (Dkt. No. 25.) After considering the parties’
`submissions and hearing oral argument, the Court adopts the
`following Order.
`I.
`BACKGROUND
`Plaintiff DC Comics is a publisher of comic books and owner of
`related intellectual property. (Compl. ¶¶ 1, 9.) In this case,
`Plaintiff is asserting its trademark rights in its Superman
`character — specifically, the iconic shield design that Superman
`wears on his chest. (Id. ¶ 10-14.) As provided by Plaintiff’s
`complaint, “one well-known iteration of the design” is:
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`As the complaint provides, “[o]ne of the indicia most strongly
`associated with Superman is the red and yellow five-sided shield
`that appears on Superman’s chest.” (Id. ¶ 10.) Plaintiff has
`registered a trademark in this shield design for adults’ and
`children’s clothing, including t-shirts. (Id. Ex. 1 (U.S.
`Trademark No. 1,184,881).) Plaintiff has also licensed this mark
`on t-shirts, with the complaint providing examples:
`
`
`As shown above, some of the licensed products are more humorous and
`some are more traditional. Plaintiff alleges that it “has achieved
`great commercial success with the goods and services offered under
`the Shield Mark.” (Id. ¶ 16.)
`Defendant Mad Engine is a clothing wholesaler. (Id. ¶ 20.)
`Defendant sold a shirt that allegedly violated Plaintiff’s Superman
`shield trademark. (Id. ¶ 2, 21-23.) The shirt at issue has a
`five-sided shield design on the chest with the text “DAD” inside:
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`Case 2:15-cv-07980-DDP-JPR Document 31 Filed 12/15/15 Page 3 of 14 Page ID #:231
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`According to Plaintiff, “DC Comic’s Shield Design consists of
`a bordered five-sided shield in red and yellow, with the text
`inside the shield sized and positioned according to the proportions
`and shape of the shield” and Defendant’s t-shirt “incorporates each
`of these elements.” (Id. ¶ 24.) Plaintiff alleges that it sent
`Defendant a cease and desist letter on June 1, 2015, but Defendant
`failed to respond until June 19, 2015, because Defendant wanted the
`shirt to sell during the Father’s Day sales period. (Id. ¶ 28.)
`Defendant refused to cease sales, even after a second cease and
`desist letter. (Id. ¶ 29.)
`Thus, Plaintiff has filed the current lawsuit, alleging
`federal trademark infringement and counterfeiting under 15 U.S.C. §
`1114, unfair competition and false designation of origin under 15
`U.S.C. § 1125, trademark dilution under 15 U.S.C. § 1125, and state
`law unfair competition under California Business and Professions
`Code section 17200 et seq. (See Compl.) Defendant has filed a
`Motion to Dismiss, arguing that its t-shirt is a parody of
`Plaintiff’s mark so the shirt does not infringe or dilute
`Plaintiff’s mark. (See Def. Mot. Dismiss, Dkt. No. 25.)
`II. LEGAL STANDARD
`A 12(b)(6) motion to dismiss requires a court to determine the
`sufficiency of the plaintiff's complaint and whether it contains a
`“short and plain statement of the claim showing that the pleader is
`entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Rule
`12(b)(6), a court must (1) construe the complaint in the light most
`favorable to the plaintiff, and (2) accept all well-pleaded factual
`allegations as true, as well as all reasonable inferences to be
`drawn from them. See Sprewell v. Golden State Warriors, 266 F.3d
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`979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187
`(9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.
`1998).
`In order to survive a 12(b)(6) motion to dismiss, the
`complaint must “contain sufficient factual matter, accepted as
`true, to ‘state a claim to relief that is plausible on its face.’”
`Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.
`Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However,
`“[t]hreadbare recitals of the elements of a cause of action,
`supported by mere conclusory statements, do not suffice.” Id. at
`678. Dismissal is proper if the complaint “lacks a cognizable
`legal theory or sufficient facts to support a cognizable legal
`theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097,
`1104 (9th Cir. 2008); see also Twombly, 550 U.S. at 561-63
`(dismissal for failure to state a claim does not require the
`appearance, beyond a doubt, that the plaintiff can prove “no set of
`facts” in support of its claim that would entitle it to relief).
`A complaint does not suffice “if it tenders ‘naked
`assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
`U.S. at 678 (quoting Twombly, 550 U.S. at 556). “A claim has
`facial plausibility when the plaintiff pleads factual content that
`allows the court to draw the reasonable inference that the
`defendant is liable for the misconduct alleged.” Id. The Court
`need not accept as true “legal conclusions merely because they are
`cast in the form of factual allegations.” Warren v. Fox Family
`Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).
`///
`///
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`III. DISCUSSION
`Defendant argues that its “DAD” shield image on a Father’s Day
`novelty t-shirt is a parody of Plaintiff’s Superman shield and
`therefore not likely to confuse consumers as to the source or
`affiliation of its product. (See Mot. Dismiss at 6-9.) Defendant
`also claims that this lack of consumer confusion is true under a
`full Sleekcraft analysis. (Id. at 10-18.) Defendant further
`argues that there is no trademark dilution here because the two
`shields are dissimilar and because parodies do not dilute as a
`matter of law. (Id. at 19-22.) Lastly, Defendant claims that the
`state law unfair competition claim should be dismissed for the same
`reasons that support dismissing the trademark claims. (Id. at 22-
`23.)
`
`In response, Plaintiff argues first that Defendant has failed
`to treat its motion to dismiss as a true motion to dismiss because
`Defendant has introduced new facts not alleged in the complaint and
`fails to accept the well-pled facts in the complaint as true.
`(Opp’n at 4-7.) Plaintiff claims that its complaint adequately
`alleges facts that, taken as true, support all of its claims. (Id.
`at 7-21.) For the argument regarding likelihood of confusion,
`Plaintiff argues that Defendant’s motion relies on facts and
`allegations from outside the complaint, which should not be
`considered on a motion to dismiss, and that the facts in the
`complaint satisfy a Sleekcraft factor analysis. (Id. at 7-8; n9-
`15.) Further, Plaintiff argues that Defendant’s use of its mark is
`not a parody at all for purposes of likelihood of confusion and
`dilution. (Id. at 16-21.)
`///
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`Case 2:15-cv-07980-DDP-JPR Document 31 Filed 12/15/15 Page 6 of 14 Page ID #:234
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`Parody
`A.
`Defendant’s arguments in its motion rely heavily on its claim
`that its shield is a parody of Plaintiff’s Superman mark. (See
`Mot. Dismiss at 6-9.) Defendant states:
`Mad Engine’s DAD Image is an obvious parody of Superman and
`his Shield, commenting on the real-world futility and even
`pretentiousness of Superman and his Shield. Whereas
`Superman proudly bears the Shield on his chest as he flies
`around saving people in a fantasy world, “DAD” lacks any
`superpowers, but is a real-world hero to his kids.
`Superman wears a cape and uses superhuman strength to stop
`trains and catch airplanes, while your real-world DAD wears
`a t-shirt and sometimes helps do the dishes. This comment
`by Mad Engine and its DAD Image on the undue self-
`importance of Superman and his fictionalized superhero
`powers does achieve the effect of ridicule, though only
`through a simple turn of phrase.
`
`(Id. at 6.)
`The Ninth Circuit has examined how parodies affect trademark
`infringement claims by explaining that such an argument is a part
`of the usual consumer confusion analysis, and that the underlying
`question is whether there is such consumer confusion:
`In a traditional trademark infringement suit founded on the
`likelihood of confusion rationale, the claim of parody is
`not really a separate “defense” as such, but merely a way
`of phrasing the traditional response that customers are not
`likely to be confused as to the source, sponsorship or
`approval. “Some parodies will constitute an infringement,
`some will not. But the cry of ‘parody!’ does not magically
`fend off otherwise legitimate claims of trademark
`infringement or dilution. There are confusing parodies and
`non-confusing parodies. All they have in common is an
`attempt at humor through the use of someone else’s
`trademark. A non-infringing parody is merely amusing, not
`confusing.”
`
`Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394,
`1405 (9th Cir. 1997) (internal citations omitted).
`A parody pokes fun at the senior mark, like “Chewy Vuiton” dog
`toys parodying Louis Vuitton’s luxury mark, or “Lardashe” jeans
`parodying Jordache jeans. See Louis Vuitton Malletier S.A. v.
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`Case 2:15-cv-07980-DDP-JPR Document 31 Filed 12/15/15 Page 7 of 14 Page ID #:235
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`Haute Diggity Dog, LLC, 507 F.3d 252 (4th Cir. 2007); Jordache
`Enters., Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482 (10th Cir. 1987).
`By contrast, a motorcycle repair shop that was not licensed by
`Harley Davidson but which used a logo substantially similar to
`Harley Davidson’s mark was found to not be a parody because it made
`“no comment on Harley’s mark; it simply use[d] it somewhat
`humorously to promote [its] own product and services, which is not
`a permitted trademark parody use.” Harley Davidson, Inc. v.
`Grottanelli, 164 F.3d 806, 813 (2d Cir. 1999).
`Here, Defendant claims that putting “DAD” into a superhero
`shield is making fun of Superman by pointing out Superman’s “undue
`self-importance.” (Mot. Dismiss at 6.) However, it is unclear
`from the briefing and the complaint if there is a true parody here,
`like in the Louis Vuitton and Jordache cases, or if there is
`instead a somewhat humorous use that confuses consumers as to the
`source of the product, as in Harley Davidson.
`Defendant argued in its brief and at oral argument that in
`Toho Co. v. Sears, Roebuck & Co., 645 F.2d 788 (9th Cir. 1981), the
`Ninth Circuit found on a motion to dismiss that a “humorous
`caricature” of a famous mark was not confusing to consumers as a
`matter of law. The plaintiff in that case owned the name
`“Godzilla” and the related character, “a fictitious, gigantic,
`green, lizard-like monster.” Id. at 789. The plaintiff also used
`the slogan “King of the Monsters” in relation to its mark. Id.
`The name and likeness was licensed on merchandise such as comic
`books, coloring books, toys, games, TV shows, and movies. Id. at
`789-90. By contrast, the defendant sold “garbage bags in boxes
`which designate[d] the bags as a Sears product, but which also
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`display[ed] the word ‘Bagzilla,’ depict[ed] a ‘comic, helpful,
`personified reptilian creature,’ and carr[ied] the legend
`‘Monstrously Strong Bags.’” Id. at 790.
`The Ninth Circuit held that the marks at issue in the case
`were unrelated as a matter of law after applying the Sleekcraft
`factors. Id. The court found that the marketing channels were
`different, as well as the actual goods at issue:
`Sears sells garbage bags. Toho produces or sponsors only
`literary works and toys. Sears uses “BAGZILLA” instead of
`“GODZILLA” and puts the Sears name prominently on the
`package. The representation of the creature is a humorous
`caricature rather than an exact copy.
`Id. Lastly, the court found that Sears did not intend to confuse
`consumers and instead intended “only to make a pun.” Id. at 791.
`Thus, after a consideration of all the factors, the court held that
`there was no evidence that consumers would be “confused as to
`source or sponsorship of the garbage bags.” Id.
`Unlike in Toho, the alleged infringing product here does not
`contain a prominent indication that the shirt comes from the
`defendant rather than the plaintiff. That is, in Toho, Sears had
`its name and mark prominently displayed on the garbage bags. Here,
`by contrast, Mad Engine does not have a prominent indication that
`the t-shirt is from it and not from the creator and licensor of
`Superman. Further, the shields here are the same except for the
`text reading “DAD” and “S,” which conjures up “Superdad” and
`“Superman” respectively. This is unlike Toho, where there were
`different creatures on the box and in the film, although the name
`of “Bagzilla” did conjure up the trademarked “Godzilla.”
`Perhaps most importantly, the plaintiff and defendant had
`different products and marketing channels in Toho. There, the
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`plaintiff did not license or produce garbage bags, or use any of
`the same marketing to promote their products. Here, Plaintiff has
`made many different iterations of licensed Superman t-shirts,
`including one that makes the same inference that Defendant’s shirt
`makes: Superdad. The marketing channels and goods are therefore
`not unrelated as a matter of law. Thus, the holding in Toho does
`not change the Court’s holding here.
`Defendant also argues that this Court has previously held that
`a complaint did not state a claim for trademark infringement at the
`motion to dismiss stage, citing Burnett v. Twentieth Century Fox
`Film Corp., 491 F. Supp. 2d 962 (C.D. Cal. 2007). However, the
`facts of Burnett are dissimilar to the facts of this case. Burnett
`involved the animated TV show, “Family Guy,” making a parody of
`Carol Burnett’s “Charwoman” character. Id. at 966. As the
`decision states, “Family Guy routinely puts cartoon versions of
`celebrities in awkward, ridiculous, and absurd situations in order
`to lampoon and parody those public figures and to poke fun at
`society’s general fascination with celebrity and pop culture.” Id.
`at 966-67. This Court held that due to the expressive nature of
`the allegedly infringing TV show and based on the “distasteful and
`bizarre, even outrageous and offensive” way the clip lampooned the
`Charwoman character, no reasonable consumer would be confused or
`think anything of the clip other than that Carol Burnett was the
`subject of a Family Guy parody. See id. at 973.
`The situation in Burnett was quite different than the case
`here. Here, the allegedly infringing t-shirt makes the same joke
`as a shirt licensed by Plaintiff: both shirts refer to “Superdad”
`through the use of the Superman shield or something like it. There
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`is no lampooning of Superman by making a play on “Superman” with
`“Superdad.” Defendant’s shirt is saying something like, “My dad is
`like Superman — he’s Superdad.” Thus, as in Harley Davidson,
`Defendant’s shirt is more like a humorous use to promote the t-
`shirt’s sales rather than a parody of Superman.
`B.
`Sleekcraft Factors Analysis
`Defendant argues that the shield design on its t-shirt is
`substantially different from Plaintiff’s trademark, and that the
`other Sleekcraft factors support the claim that consumers would not
`be confused as to the origin of the products. (Mot. Dismiss at 10-
`18.) Defendant states that the “S” in Plaintiff’s mark is the
`dominant feature of the mark, and Defendant’s mark uses “DAD” with
`no “S,” so the dominant parts of the mark are dissimilar. (Id. at
`13.)
`
`In AMF Inc. v. Sleekcraft Boats, the Ninth Circuit provided
`eight nonexclusive factors for a court to use in determining
`whether consumer confusion is likely. 599 F.2d 341, 348-49 (9th
`Cir. 1979). These factors are: (1) the strength of the plaintiff’s
`mark; (2) the proximity or relatedness of the goods; (3) the
`similarity of the marks; (4) evidence of actual confusion; (5)
`marketing channels used; (6) the type of goods and likely degree of
`purchaser care; (7)defendant’s intent in selecting the mark; (8)
`likelihood of expansion of the product lines. Id.
`The similarity of the marks is arguably the most important of
`these factors because “[w]here the two marks are entirely
`dissimilar, there is no likelihood of confusion.” See Brookfield
`Commc’ns, Inc. v. West Coast Entm’t Corp., 174 F.3d 1036, 1054 (9th
`Cir. 1999). Of course, similarity — even “precise identity” — does
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`not equate with consumer confusion, which is the ultimate test, but
`similarity combined with the other factors is a good indicia of
`such confusion. Id.; Sleekcraft, 599 F.2d at 351.
`1.
`Similarity of the Marks
`Here, the complaint alleges that there is substantial
`similarity between the two marks and that this similarity leads to
`consumer confusion. (See Compl. ¶¶ 23-27, 32, 37-39.) The
`complaint’s allegations and a visual inspection of the two marks
`demonstrates the similarities, which are sufficient to allow
`Plaintiff’s complaint to survive a motion to dismiss:
`
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`
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`Both shields are five-sided shapes, bordered in red, with red
`lettering inside on a yellow background, and with the lettering
`designed to fit in the shape. A consumer, as Plaintiff alleges,
`could easily think that the same company that makes or licenses
`shirts with the symbol on the right made or licensed the shirt with
`the symbol on the left. Even without the red, yellow, and blue
`colors — Plaintiff’s registered trademark is black and white, as
`shown below — the two marks have similar five-sided shapes and text
`that fits the shape, as well as a border and similar font for the
`text in the shape:
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`Therefore, the Court holds that Plaintiff has properly alleged
`consumer confusion based on the similarity of the two shields so as
`to survive a motion to dismiss. The Court will examine the other
`Sleekcraft factors below as they also support the denial of
`Defendant’s motion.
`2.
`Strength of Plaintiff’s Mark
`It is undisputed that Plaintiff’s mark is very strong. (Mot.
`Dismiss at 14-15; Opp’n at 9-10.)
`3.
`Proximity of the Goods
`While defendant claims that Plaintiff’s complaint fails to
`plead any facts regarding the proximity of the goods, Plaintiff
`responds that the goods are “identical” and thus there is a high
`degree of consumer confusion as to this factor. (Mot. Dismiss at
`15; Opp’n at 10-11.)
`4.
`Evidence of Actual Confusion
`Both parties acknowledge that there is no evidence of actual
`consumer confusion. (Mot. Dismiss at 15; Opp’n at 9 n.5.)
`However, as Plaintiff points out, such evidence is likely to come
`during discovery and not at this early stage, but the complaint did
`plead consumer confusion. (Opp’n at 9 n.5.)
`5.
`Marketing Channels Used
`The parties do not contest for the purposes of this motion
`that they use the same marketing channels. (Mot. Dismiss at 15;
`Opp’n at 14.)
`Type of Goods and Likely Degree of Consumer Care
`6.
`The type of goods here are t-shirts, and both parties produce
`t-shirts with shield designs in the center. Plaintiff does not
`offer argument as to the likely degree of consumer care in making
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`this kind of purchase, and there are no facts pled in the complaint
`regarding this factor. Plaintiff explains that the necessary
`evidence, such as the price of Defendant’s shirt, would come during
`discovery. (Opp’n at 9 n.5.) Defendant claims that Plaintiff’s
`failure to plead facts regarding the likely degree of care means
`this factor is neutral in this case. (Mot. Dismiss at 15-16.)
`7.
`Defendant’s Intent
`Plaintiff argues that the complaint “alleges that Defendant’s
`conduct was willful and done with the intent to trade off the fame
`of Plaintiff’s iconic Superman character and Shield Mark and to
`falsely convey to consumers that the infringing t-shirt was a
`licensed DC Comics product. (Opp’n at 14 (citing Compl. ¶¶ 23,
`26.)) Defendant argues that its intent is, as argued above, to
`make a parody of Superman. (Mot. Dismiss at 16.) Further,
`Defendant argues that its use of the shield is “ornamental” and not
`a trademark use. (Id.)
`8.
`Likelihood of Expansion of Products
`The parties do not contest this factor, as they both offer the
`same product. (Mot. Dismiss at 18; Opp’n at 9 n.5.)
`9.
`Balance of Factors
`The balance of these factors weighs in favor of Plaintiff at
`the motion to dismiss stage because all the well-pled facts in the
`complaint must be taken as true and Plaintiff has alleged
`sufficient facts to support consumer confusion under a Sleekcraft
`factor analysis. The two shields are substantially similar and are
`on the same kind of product, a t-shirt, and use the same marketing
`channels. As pled, consumers are likely to be confused and believe
`that Defendant’s “DAD” shirt was a licensed, humorous take by DC
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`Comics on its own mark. Therefore, the Sleekcraft factors do not
`weigh in favor of dismissing the complaint at this stage.
`C.
`Dilution and Unfair Competition
`Because the Court finds the marks are substantially similar
`and the parody argument insufficient at this stage of the case, the
`Court also finds that the complaint has properly alleged both its
`dilution and unfair competition causes of action based on the same
`underlying facts.
`IV. CONCLUSION
`For the reasons stated above, Defendant Mad Engine’s Motion to
`Dismiss is DENIED.
`
`IT IS SO ORDERED.
`
`Dated: December 15, 2015
`
`HON. DEAN D. PREGERSON
`United States District Judge
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