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AJB Enterprises, LLC v. Backjoy Orthotics, LLC

United States District Court, D. Connecticut

September 29, 2017

AJB ENTERPRISES, LLC, Plaintiff,
v.
BACKJOY ORTHOTICS, LLC, Defendant.

          RULING ON MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         AJB Enterprises, LLC d/b/a Body Back Company (“AJB” or “Plaintiff”), brought this action against Defendant, BackJoy Orthotics, LLC (“BackJoy” or “Defendant”), alleging federal and state claims of trade dress infringement, unfair competition, breach of contract and unjust enrichment. Compl., ECF No. 1. On December 16, 2016, the Court granted BackJoy's [22] Motion to Dismiss all claims under Rule 12(b)(6) and allowed AJB to file an Amended Complaint addressing the deficiencies outlined in the Court's ruling. Mot. to Dismiss Ruling, ECF No. 35.

         AJB filed an Amended Complaint on January 17, 2017. Am. Compl., ECF No. 36. BackJoy moved to dismiss AJB's Amended Complaint on February 7, 2017 under Rule 12(b)(6), arguing that the Amended Complaint suffers from the same deficiencies as the original Complaint and seeking dismissal, with prejudice, of all claims. Def. Mot. to Dismiss, ECF No. 39.

         For the reasons outlined below, BackJoy's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. BackJoy's motion is denied as to AJB's federal claims, and those claims will be permitted to proceed at this time. BackJoy's motion is granted, however, as to AJB's state law claims. All state law claims are dismissed without prejudice to refiling, provided that AJB specifies, in accordance with the Court's previous ruling, which state's substantive law applies to its claims.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The factual allegations in this case are clearly laid out in the Court's previous ruling on BackJoy's [22] Motion to Dismiss. See Mot. to Dismiss Ruling, ECF No. 35. The Court assumes familiarity with AJB's factual claims for purposes of this opinion.

         A. AJB's Original Complaint and the Court's Motion to Dismiss Ruling

         In its original Complaint, AJB alleged two federal claims: (1) federal unfair competition based on trade dress infringement; and (2) federal unfair competition based on “multiple misrepresentations.” Compl., ECF No. 1. The Complaint also alleged numerous state law claims, including various forms of unfair competition as well as breach of contract and unjust enrichment claims, without specifying which state's common law would govern those claims. Id. In support of its claims, AJB alleged that BackJoy impermissibly copied its S-shaped trigger point massager (“Body Back massager”), duplicating several design features that constitute AJB's claimed trade dress, and sold that device on the market as its own. Id. In the Court's [35] Motion to Dismiss ruling, the Court dismissed all federal claims asserted in AJB's original Complaint, without prejudice, for failure to state a claim under Rule 12(b)(6). Mot. to Dismiss Ruling, ECF No. 35.

         As to AJB's first federal claim of trade dress infringement, the Court noted in its ruling that the Complaint lacked the requisite specificity regarding the alleged distinctiveness of the claimed trade dress. Id. at 6-7. The Court also found that AJB failed to allege specifically two of the three elements required for a viable trade dress infringement claim: (1) that the claimed trade dress was not “functional, ” and (2) that the claimed trade dress has acquired a secondary meaning. Id. at 7-11. As to AJB's second federal claim of unfair competition, the Court found that, without a protectable trade dress in connection with the product at issue, AJB could not state a plausible unfair competition claim. Id.

         The Court dismissed both federal claims accordingly. Id. The Court also declined to exercise supplemental jurisdiction over AJB's state law claims, having dismissed all federal claims. Id. The Court's ruling was without prejudice to filing an Amended Complaint within 30 days. Id. In connection with AJB's state law claims, the Court specifically ordered that, “[s]hould AJB choose to file an Amended Complaint in this matter, it is also instructed to include specific allegations regarding the applicable state substantive law in connection with its state common law claims.” Id.

         B. AJB's Amended Complaint

         AJB filed an Amended Complaint on January 17, 2017, within the time period specified the Court in its motion to dismiss ruling. Am. Compl., ECF No. 36. In its Amended Complaint, AJB brings the same federal and state law claims that it attempted to assert in the original Complaint and sets forth the same general allegations against BackJoy. Id. at ¶¶ 91-100. In light of the deficiencies described in the Court's ruling, however, AJB supplemented its Amended Complaint with additional detail. Id.

         While a significant portion of this additional detail does not relate directly to the reasons given by the Court for dismissal, the Amended Complaint does add some substance in three key areas with respect to AJB's federal claims. First, the Amended Complaint adds specific allegations regarding how the claimed trade dress is distinctive. In its Amended Complaint, AJB focuses the description of its claimed trade dress, emphasizing the appearance of the device: “which, by virtue of its S-shaped frame, in combination with an arm supporting a massage nub, is distinctive from other cane massage tool products on the market....” Id. at ¶ 2; see also Id. at ¶ 14 (defining “Trade Dress” as “[t]he appearance of the Body Back Original, more particularly, its shape defining a frame supporting massage nubs, including an S-shaped frame portion and at least one substantially straight frame arm”). AJB also submits numerous images of other cane massagers available on the market, see Id. at ¶ 17, alleging that its Body Back massager is visibly distinct from all these other products, thus confirming the distinctiveness of its trade dress.

         Second, citing these images and allegations regarding other products, the Amended Complaint specifically alleges that its claimed trade dress - namely, the product's shape and the specific positioning of its massage nubs - is non-functional. Id. The Amended Complaint describes several other cane massagers available on the market and specifically confirms that the described “alternative configurations of other tools on the market perform the same function as the Body Back Original.” Id. at 8.

         Finally, the Amended Complaint specifically asserts that “Plaintiff and its predecessor have incurred great expense and have devoted substantial resources to make the Body Back Original extremely well known and readily recognizable to customers.” Id. at ¶ 31. In support of this allegation, AJB includes various details regarding its alleged marketing and advertising efforts. See Id. at ¶¶ 32-33 (“Body Back spent approximately $500, 000 in advertising the Body Back Buddy trigger point massage tool on Amazon, Google and Facebook... Body Back and its Predecessor have also advertised the Body Back Buddy on Pinterest, Instagram and Twitter.”); id. at ¶ 34 (“There are very many popular videos featuring the Body Back Original ... available on You Tube and the Body Back website, all of which have acted to build the goodwill of the business of Plaintiff in the Body Back Buddy and increase the recognizability and iconic nature of the Body Back Original and its Trade Dress.”); id. at ¶ 45 (“Facebook cofounder Dustin Moscovitz... provided an unsolicited, unpaid and enthusiastic testimonial for ‘the strangely shaped massage device he swears by....'”).

         With respect to AJB's state law claims, the Amended Complaint does not specify a particular state substantive law under which the claims are brought. Instead, AJB includes reference to three different states - Connecticut, Oregon and Colorado - asserting that AJB would be entitled to ...


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