Case 2:21-cv-01006-CDS-DJA Document 23 Filed 07/27/22 Page 1 of 10
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`46 LABS LLC,
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` Plaintiff,
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` v.
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`PARLER LLC,
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` Defendant.
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`Case No. 2:21-cv-01006-CDS-DJA
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`
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`Order Granting Defendant’s
`Motion to Dismiss
`(ECF No. 13)
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`This case arises out of dueling ‘P’-shaped logos between two companies. Plaintiff 46 Labs
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`LLC brings four claims against Defendant Parler, LLC, alleging: (1) trademark infringement
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`under 15 U.S.C. § 1141(1); (2) false association under 15 U.S.C. § 1125(a)(1)(A); (3) common law
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`trademark infringement; and (4) common law unfair competition. ECF No. 2 at 6-8. 46 Labs
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`filed its complaint on May 26, 2021. ECF No. 2. Parler moved to dismiss under Fed. R. Civ. P.
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`12(b)(6) on Aug. 30, 2021. ECF No. 13. Plaintiff responded on Sep. 13, 2021. ECF No. 18.
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`Defendant replied on Sep. 20, 2021. ECF No. 19. After consideration of the moving papers and
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`relevant law, I grant Defendant Parler’s Motion to Dismiss for the reasons stated below.
`I.
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`Relevant Background Information
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`i.
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`Plaintiff 46 Labs and the Peeredge Mark
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`46 Labs is an Oklahoma LLC involved in communication infrastructure and related
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`services. ECF No. 2 at ¶¶2, 6. One of the services 46 Labs offers is a user interface called
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`“Peeredge.” ECF No. 2 at 3. The logo 46 Labs has used for Peeredge since 2015 is a stylized ‘P’,
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`which remains in sight of customers while they log into and use the service. Id. at 3-4.
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`Case 2:21-cv-01006-CDS-DJA Document 23 Filed 07/27/22 Page 2 of 10
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`As set forth in the Complaint, 46 Labs owns a trademark registered with the U.S. Patent
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`and Trademark Office for the that stylized ‘P,’ Reg. No. 4,790,688. ECF No. 2 at ¶9. It was
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`registered on Aug. 11, 2015. Id. The mark “consists of a stylized letter ‘P’ composed of a semicircle
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`with and [sic] extended straight line forming the body of the ‘P’ and a curved line that starts in
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`the semicircle and extends downward to form the leg of the ‘P’.” Id. The mark is registered as a
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`service mark for “cloud computing featuring software for use in the management of
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`telecommunications including switching, management of call data, telecommunications systems
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`and telecommunications business functions…” Id.
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`ii.
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`Defendant Parler and the Parler Logo
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`Parler is a Nevada LLC that operates a social media platform. ECF No. 2 at ¶3. Parler
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`launched its platform in August of 2018. Id. at ¶11. In connection with the Parler platform, Parler
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`utilizes a red stylized ‘P,’ which users frequently see while using the platform. Id. at ¶12. Plaintiff
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`alleges, and Parler does not dispute, that the Parler ‘P’ mark looks nearly identical to the
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`Peeredge ‘P’ mark in every respect except for their respective colors (red for Parler and blue for
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`Peeredge). ECF No. 2 at 4.
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`iii.
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`Trademark Infringement Claims
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`46 Labs argues that Parler has “intentionally used the Infringing Mark in connection
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`with its” business without 46 Labs’ consent. ECF No. 2 at 5-6. Plaintiff alleges that Parler’s use
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`of the infringing mark “has caused actual confusion among 46 Lab’s [sic] customers.” Id. at 5. 46
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`Labs claims it “has suffered and will continue to suffer monetary loss and irreparable injury to its
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`business, reputation, and goodwill associated with its Peeredge Mark.” Id. 46 Labs brings
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`trademark infringement claims under the Lanham Act and at common law. Id. at 6-7.
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`Parler contends that its use of the similarly stylized ‘P’ does not rise to the level of
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`infringement because Parler’s use does not reasonably confuse Plaintiff’s customers. See generally
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`ECF No. 13. Parler argues that this case must be dismissed for two reasons: first, because Parler’s
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`social networking platform is unrelated to the Peeredge service, and second, because the two
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`companies’ services are not competitive with each other so reasonable consumers are unlikely to
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`be confused. Id.
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`iv.
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`False Association & Unfair Competition Claims
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`46 Labs also complains of Parler’s false association under the Lanham Act and Parler’s
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`unfair competition at common law. ECF No. 2 at 6-8. In both counts, Plaintiff argues that
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`Parler’s infringing mark is likely to confuse or deceive 46 Labs’ customers. Id. Plaintiff claims that
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`it has suffered diversion of trade, loss of profits and goodwill, and damage to its reputation. Id.
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`Parler avers that 46 Labs has failed to plead these allegations with any specificity. ECF
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`No. 13 at 8-9. It notes that, in lieu of actual confusion demonstrated by 46 Labs, the non-
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`infringement causes of action turn on the same standard as the infringement causes of action:
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`likelihood of confusion to reasonable customers. Id. at 10-11.
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`Essentially, in moving to dismiss all four of 46 Labs’ causes of action, Parler relies upon
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`the argument that “trademark infringement allegations that fail to plausibly allege probable
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`consumer confusion should be dismissed at the pleading stage.” Id. at 11. It contends that 46
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`Labs’ failure to allege that its services are like those provided by Parler and 46 Labs’ failure to
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`allege facts that plausibly show probable consumer confusion are both fatal to 46 Labs’ case. Id.
`II.
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`Discussion
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`i.
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`Jurisdiction and Venue
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`This Court’s jurisdiction over the matter is proper based on federal question jurisdiction.
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`28 U.S.C. § 1331. Plaintiff’s causes of action are appropriately pled in federal law, specifically the
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`Lanham Act. Thus, the federal element of those claims appears on the face of Plaintiff’s
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`complaint, are substantial components of 46 Labs’ claims, and are of significant federal interest.
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`Furthermore, some of Plaintiff’s claims relate to trademark infringement. As a result, this Court
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`may exercise subject matter jurisdiction over those claims. See 28 U.S.C. § 1338(a) (“[T]he
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`district courts shall have original jurisdiction of any civil action arising under any Act of
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`Congress relating to…trademarks.”). Additionally, this Court may exercise jurisdiction over 46
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`Labs’ unfair competition claim as it is joined with the trademark infringement claims. See 28
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`U.S.C. § 1338(b) (“[T]he district courts shall have original jurisdiction of any civil action
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`asserting a claim of unfair competition when joined with a substantial and related claim under
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`the…trademark laws.”).
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`Finally, this Court may also exercise supplemental jurisdiction over 46 Labs’ state law
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`claims on the basis that those state law claims are related to the federal trademark infringement
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`claims. See 28 U.S.C. § 1367.
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`ii.
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`Legal Standard for Motions to Dismiss
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`The Federal Rules of Civil Procedure require a plaintiff to plead “a short and plain
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`statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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`Dismissal is appropriate under Fed. R. Civ. P. 12(b)(6) where a pleader fails to state a claim upon
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`which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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`(2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which
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`it rests, and although a court must take all factual allegations as true, legal conclusions couched
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`as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Fed. R. Civ. P.
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`12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements
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`of a cause of action will not do.” Id. To survive a motion to dismiss, “a complaint must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard
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`“asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
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`If the court grants a motion to dismiss for failure to state a claim, leave to amend should
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`be granted unless it is clear that the deficiencies of the complaint cannot be cured by
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`amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Fed. R.
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`Civ. P. 15(a), a court should “freely” give leave to amend “when justice so requires,” and in the
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`absence of a reason such as “undue delay, bad faith or dilatory motive of the part of the movant,
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`repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the
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`opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman
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`v. Davis, 371 U.S. 178 (1962).
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`iii.
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`Federal Law Trademark Infringement Claim
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`Under the Lanham Act, “[t]o prevail on a claim of trademark infringement … a party must
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`prove: (1) that it has a protectible ownership interest in the mark; and (2) that the defendant’s
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`use of the mark is likely to cause consumer confusion.” Network Automaton, Inc. v. Advanced Sys.
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`Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011) (simplified). The “sine qua non of trademark
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`infringement is consumer confusion.” Id. at 1142. “The test for likelihood of confusion is whether
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`a reasonably prudent consumer in the marketplace is likely to be confused as to the origin of the
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`good or service bearing one of the marks.” Multi Time Mach., Inc. v. Amazon.com Inc., 804 F.3d 930,
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`935 (9th Cir. 2015). A reasonably prudent consumer is one who “exercise[s] ordinary caution,”
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`and that caution presumably increases where a buyer exercises “care and precision in their
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`purchases, such as for expensive or sophisticated items.” Id. at 937. The “default degree of
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`consumer care is becoming more heightened as the novelty of the Internet evaporates and online
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`commerce becomes commonplace.” Id. The confusion must be a probability, not simply a
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`possibility. Murray v. Cable Nat’l Broad. Co., 86 F.3d 858, 860 (9th Cir. 1996).
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`In determining the likelihood of confusion at the motion to dismiss stage, this Court
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`must consider whether 46 Labs has stated a plausible case that consumers would be confused by
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`Parler’s use of a substantially similar stylized ‘P’ to 46 Labs’ registered trademark. To answer
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`this question, courts in this Ninth Circuit consider the following “Sleekcraft” factors:
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`(1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks;
`(4) evidence of actual confusion; (5) marketing channels used; (6) type of goods
`and the degree of care likely to be exercised by the purchaser; (7) defendant’s
`intent in selecting the mark; and (8) likelihood of expansion of the product lines.
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`M2 Software, Inc. v. Madacy Ent., 421 F.3d 1073, 1080 (9th Cir. 2005) (citing AMF Inc. v. Sleekcraft Boats,
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`599 F.2d 341, 348-49 (9th Cir. 1979), abrogated in part on other grounds by Mattel, Inc. v. Walking
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`Mountain Prods., 353 F.3d 792, 810 n.19 (9th Cir. 2003)). These factors are neither exhaustive nor
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`dispositive; “it is the totality of facts in a given case that is dispositive.” Pom Wonderful LLC v.
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`Hubbard, 775 F.3d 1118, 1125 (9th Cir. 2014) (quoting Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135,
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`1140 (9th Cir. 2002)).
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`Before addressing the Sleekcraft factors, however, this Court must define the relevant
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`consumer market because “a court conducting a trademark analysis should focus its attention on
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`the relevant consuming public.” Rearden LLC v. Rearden Com., Inc., 683 F.3d 1190, 1214 (9th Cir.
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`2012).
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`46 Labs has not sufficiently pled that Parler’s use of the stylized ‘P’ is likely to cause
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`consumer confusion rising to the level of trademark infringement, and for that reason, claim one
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`of the complaint must be dismissed. Critically, Plaintiff has not pled facts that, even if accepted
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`as true, allow this Court to determine that 46 Labs and Parler compete with similar services.
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`Trademark infringement occurs when an infringer uses a substantially identical mark for similar
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`goods. Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446,
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`1454 (9th Cir. 1991). 46 Labs provides no evidence that Parler competes within the same
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`industry, or provides similar goods or services, as 46 Labs’ Peeredge service. “Goods and services
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`are related when they are complementary, sold to the same class of purchasers, or similar in use
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`and function.” Ironhawk Technologies, Inc. v. Dropbox, Inc., 2 F.4th 1150, 1163 (9th Cir. 2021) (citing
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`Sleekcraft, 599 F.2d at 350). “Related goods (or services) are those ‘which would be reasonably
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`thought by the buying public to come from the same source if sold under the same mark.’”
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`Rearden, 683 F.3d at 1212 (quoting Sleekcraft, 599 F.2d at 348 n.10).
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`46 Labs describes itself as a “leader in communication infrastructure and services since
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`2012, and a leading provider of communications infrastructure and services throughout the
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`United States.” ECF No. 2 at 3. Its Peeredge service is essentially a telephony platform. Id.; see also
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`ECF No. 13 at 2. Parler, by contrast, is a social media platform that promotes itself as an
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`alternative to larger social media sites like Facebook or Twitter. ECF No. 2 at ¶11. Plaintiff fails
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`to link the services provided by its own Peeredge platform to the services provided by Parler.
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`There are no allegations in 46 Labs’ complaint that the same group of purchasers use both
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`Peeredge and Parler, nor that Peeredge and Parler are similar in use or function, nor that the
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`buying public would reasonably think that goods or services provided by Parler come instead
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`from 46 Labs. Plaintiff’s allegation that “customers of 46 Labs contacted 46 Labs based on their
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`confusion that 46 Labs was responsible for or affiliated with Parler” is an unsupported assertion
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`of an element of trademark infringement. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
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`elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
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`46 Labs also contends in its response that “both parties provide communication services
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`to the general consumer, which enable consumers to communicate through means such as
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`phone calls or published posts.” ECF No. 18 at 5. However, this argument is overly expansive in
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`its use of relatedness. While both companies provide a type of communication services, they do
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`not provide similar services: one is a telephone services company and the other is an internet,
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`social media platform. Specifically, Peeredge is an infrastructure system that allows companies
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`to place phone calls. Parler, by contrast, is a social media site/platform wherein users may
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`communicate with other users. Peeredge and Parler have very different users. ECF No. 13 at 7.
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`Peeredge serves businesses with a need for sophisticated telecommunications infrastructure. Id.
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`Parler serves the general audience of social media consumers; that is, the general public. Id.
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`Parler’s platform is free-of-cost, while Peeredge is a paid service. Id. The services are also
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`marketed very differently; Parler is available on phone and computer app stores, while Peeredge
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`is available only to 46 Labs’ clients. ECF No. 13 at 7. Plaintiff cites to cases from other circuits
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`regarding the availability of phone calls on Facebook, a different social media platform than
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`Parler, yet does not allege that Parler (the actual Defendant in this action) is a platform on
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`which users may place phone calls. See ECF No. 18 at 5, n.3.
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`46 Labs simply cannot allege that users have a plausible likelihood of confusion.
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`Plaintiff’s attempt to throw both technology companies into a general “communications” bucket
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`are unpersuasive. ECF No. 18. The difference between the services offered by the parties,
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`uncontroverted by Plaintiff’s allegations, is the difference between an individual freely posting
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`on social media compared to a corporate entity purchasing an expensive telecommunications
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`interface. ECF No. 13 at 7.
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`Ultimately, 46 Labs has not alleged facts from which the Court can infer that it is
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`plausible that the services offered by Parler are like the goods and services offered by 46 Labs or
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`Peeredge. For that reason, I do not need to address the Sleekcraft factors – the inquiry ceases with
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`46 Labs’ lack of factual allegations regarding the comparability of its services to those of Parler.
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`Based on 46 Labs’ lack of allegations that, even if accepted as true, would demonstrate
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`that Parler’s use of the similarly stylized ‘P’ would likely cause consumer confusion, 46 Labs has
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`not demonstrated a plausible case for trademark infringement. The first count of Plaintiff’s
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`complaint must be dismissed without prejudice, with leave to amend.
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`iv.
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`Federal Law False Association Claim
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`46 Labs false association claim is not sufficiently pled that Parler’s use of the stylized ‘P’
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`is likely to cause consumer confusion rising to the level of false association. Consequently, the
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`second cause of action must be dismissed. The Lanham Act covers false association of registered
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`trademarks. See generally 15 U.S.C. § 1125(a)(1)(A). Just like infringement claims, a plaintiff must
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`demonstrate that the defendant’s usage of the mark “is likely to cause confusion, or to cause
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`mistake, or to deceive as to the affiliation, connection, or association of such person with
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`another person, or as to the origin, sponsorship, or approval of his or her goods, services, or
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`commercial activities by another person.” 15 U.S.C. § 1125(a)(1)(A). For the reasons described in
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`the trademark infringement section regarding the lack of likelihood of confusion to consumers,
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`supra p. 5-8, this claim of false association cannot survive Parler’s motion to dismiss. 46 Labs has
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`not alleged with sufficient specificity that Peeredge and Parler’s services are similar enough to
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`potentially cause consumer confusion, nor has 46 Labs alleged that Parler’s use of the stylized ‘P’
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`is likely to cause consumer confusion. Accordingly, Defendant’s motion to dismiss the second
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`cause of action is granted without prejudice, with leave to amend.
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`v.
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`Common Law Trademark Infringement & Unfair Competition Claims
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`46 Labs’ third and fourth cause of actions suffer the same defect as the first two: Plaintiff
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`has not sufficiently pled that Parler’s use of the stylized ‘P’ causes unfair competition at common
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`law.
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`Nevada has adopted the same likelihood of confusion test used by the federal courts; the
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`same “two elements [dispositive of federal trademark infringement actions] are also the
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`dispositive issues with regard to state and common law infringement claims, a claim under 15
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`U.S.C. § 1125(a), and unfair competition under Nevada law.” WEC Holdings, Inc. LLC v. Juarez, 2008
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`WL 345792, at *3 (D. Nev. Feb. 5, 2008) (citing M2 Software, 421 F.3d at 1080); see also New West
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`Corp. v. NYM Co., 595 F.2d 1194, 1201 (9th Cir. 1979) (“Whether we call the violation infringement,
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`unfair competition, or false designation of origin, the test is identical – is there a ‘likelihood of
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`confusion?’”); Caesars World, Inc. v. Milanian, 247 F. Supp. 2d 1171, 1193 (D. Nev. 2003) (“The
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`elements necessary to make out a claim of Nevada common law trademark infringement are
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`identical to the elements necessary under section 43(a) of the Lanham Act…[t]he Court will thus
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`analyze these claims together.”).
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`For the reasons set forth above regarding the allegations of trademark infringement
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`section, supra p. 5-8, 46 Labs’ common law claims cannot survive Parler’s motion to dismiss. 46
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`Labs has not alleged with sufficient specificity that Peeredge and Parler’s services are similar
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`enough to potentially cause consumer confusion, nor has 46 Labs alleged that Parler’s use of the
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`stylized ‘P’ is likely to cause consumer confusion. The third and fourth causes of action are
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`therefore dismissed without prejudice with leave to amend.
`III.
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`Conclusion
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`For the foregoing reasons, this Court GRANTS Defendant Parler’s Motion to Dismiss
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`17
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`(ECF No. 13).
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`Plaintiff 46 Labs is granted leave to amend their complaint to allege factual specificity
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`that cures the deficiencies of their pleading.
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`IT IS SO ORDERED.
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`DATED this July 27, 2022.
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`_________________________________
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` Cristina D. Silva
` United States District Judge
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`10
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