United States District Court, E.D. Louisiana
ORDER AND REASONS
TRICHE MILAZZO UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Dismiss (Doc. 10). For
the following reasons, the Motion is GRANTED IN PART.
LLC (“GoFresh”) is a wholesale food distribution
company that rebranded itself in 2009 from Tulsa Fruit
Company to GoFresh. GoFresh registered the domain name
<gofreshusa.com> in March 2009. Defendant G.O.
Corporation is a processor of fresh fruits and vegetables and
the holder of the G.O.FRESH trademark.
November 2003, Patricia Greene, CEO of Defendant, filed a
trademark application for the G.O.FRESH mark based on her
intended use of the mark in commerce. The application was
denied based on the likelihood of confusion with another
mark. Greene appealed this determination, but the appeal was
dismissed in April 2009 for failure to file an appeal brief.
of Defendant, Plaintiff began using the GOFRESH mark in
commerce on June 1, 2009. Thereafter, it received a cease and
desist letter from Defendant claiming it was infringing on
Defendant's trademark rights. Because Defendant's
trademark application had been abandoned, Plaintiff applied
to register the GOFRESH mark on July 2, 2009. On August 4,
2009, Plaintiff brought a federal lawsuit against Defendant
seeking a declaration that its use of the GOFRESH mark was
August 31, 2009, Greene petitioned to reinstate her G.O.FRESH
mark application and ultimately assigned that application to
Defendant. The petition to reinstate the application
contained a sworn statement that the appeal brief had been
timely mailed. Defendant registered the mark G.O.FRESH on
October 4, 2011.
September 28, 2016, Defendant filed a Uniform Domain Name
Registration Policy (“UDRP”) action against
Plaintiff seeking transfer of the <gofreshusa.com>
domain name from Plaintiff to it. On December 1, 2016, the
National Arbitration Forum (“NAF”) issued a
non-binding decision ruling in Defendant's favor and
ordering that the domain be transferred from Plaintiff to
action, Plaintiff seeks an order staying the transfer of the
<gofreshusa.com> domain to Defendant and declaring its
use of the name lawful. It also seeks an order cancelling
Defendant's U.S. Trademark for the mark G.O.FRESH.
Defendant has filed the instant Motion to Dismiss, arguing
that Plaintiff's claim is premature and that it fails to
state a claim upon which relief may be granted.
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead enough facts “to state a claim for relief that is
plausible on its face.” A claim is
“plausible on its face” when the pleaded facts
allow the court to “draw reasonable inference that the
defendant is liable for the misconduct
alleged.”A court must accept the complaint's
factual allegations as true and must “draw all
reasonable inferences in the plaintiff's
favor.” The court need not, however, accept as
true legal conclusions couched as factual
allegations. To be legally sufficient, a complaint
must establish more than a “sheer possibility”
that the plaintiff's claims are true. If it is apparent
from the face of the complaint that an insurmountable bar to
relief exists and the plaintiff is not entitled to relief,
the court must dismiss the claim. The court's review is
limited to the complaint and any documents attached to the
motion to dismiss that are central to the claim and
referenced by the complaint.
Reverse Domain ...