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Perry v. H.J. Heinz Company Brands LLC

United States District Court, E.D. Louisiana

June 10, 2019

DENNIS PERRY
v.
H.J. HEINZ COMPANY BRANDS, LLC

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is the plaintiff's partial motion to dismiss the defendant's counterclaims pursuant to Rule 12(b)(6) and 12(f). For the reasons that follow, the motion is GRANTED.

         Background

         This is a trademark infringement dispute concerning competing mayonnaise and ketchup condiments, “METCHUP” and “MAYOCHUP.”

         Dennis Perry is an entrepreneur. Since August 2010, he has invested time and money in creating, branding, and selling a mayonnaise and ketchup condiment sauce and a mayonnaise and mustard condiment sauce, both of which he calls METCHUP. Perry is the exclusive owner of United States Trademark Registration No. 3, 920, 035 for METCHUP (the “'035 Registration”). The ‘035 Registration provides that the word mark “METCHUP” is registered for “ketchup; mayonnaise; mustard, in Class 30 (U.S. Cl. 46).” Given the longstanding, continuous, and exclusive use of the METCHUP trademark, it is alleged, the trademark registration is incontestable under 15 U.S.C. § 1065.

         H.J. Heinz Company Brands LLC, a subsidiary of The Kraft Heinz Company, is the third largest food and beverage company in the United States. Heinz Brands owns many trademarks, some of which it licenses to Kraft Heinz Foods Company, which uses the HEINZ® marks in promoting its food products throughout the United States. Among its portfolio of trademarks, on April 23, 2018, Heinz Brands applied for federal registration of the “MAYOCHUP” mark.[1]According to Perry, consumers on social media have noted the phonetic similarities between the marks, Heinz has advertised on its website and on social media its MAYOCHUP product using a counterfeit designation identical to Perry's METCHUP trademark, and Heinz's misleading advertising practices have caused internet searches for “METCHUP” to lead the searcher directly to Heinz's website and products.

         On January 14, 2019, Perry sued H.J. Heinz Company Brands, L.L.C., alleging that Heinz's MAYOCHUP mark is confusingly similar in sight, sound, and meaning to Perry's METCHUP mark.[2] Perry asserts seven causes of action: three federal claims (counterfeiting, trademark infringement, and false designation of origin) and four state law claims (liability for damages under Louisiana Civil Code article 2315, unfair trade practices under La.R.S. 51:1409, Louisiana trademark infringement, and Louisiana trademark dilution).

         Heinz answered and asserted eight counterclaims, seeking invalidation of Perry's trademark and declaratory judgments of no counterfeiting, no trademark infringement, no false designation of origin, no liability for damages under Civil Code article 2315, no unfair trade practices, no Louisiana trademark infringement, and no Louisiana trademark dilution. Arguing that Heinz's second through eighth counterclaims are merely mirror images of the plaintiff's claims against Heinz, the plaintiff now moves to dismiss these counterclaims as redundant of the issues raised by the plaintiff's claims.

         I.

         A.

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a claim upon which relief can be granted. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         In considering a Rule 12(b)(6) motion, the Court “accept[s] all well-pleaded facts as true and view[s] all facts in the light most favorable to the plaintiff.” See Thompson v. City of Waco, Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012)(en banc)). But, in deciding whether dismissal is warranted, the Court will not accept conclusory allegations in the complaint as true. Id. at 502-03 (citing Iqbal, 556 U.S. at 678).

         To survive dismissal, “‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation marks omitted). “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.” Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.”). “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 678 (internal quotations omitted) (citing Twombly, 550 U.S. at 557). “[A] plaintiff's obligation to provide the ...


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