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Rice v. Reading For Education LLC

United States District Court, E.D. Wisconsin

October 7, 2019

MARK RICE, Plaintiff,
v.
READING FOR EDUCATION, LLC, Defendant.

          DECISION AND ORDER

          LYNN ADELMAN, UNITED STATES DISTRICT JUDGE

         Mark Rice, proceeding pro se, filed a complaint against Reading for Education, LLC (“RFE”), alleging claims for trademark infringement, unfair competition, deceptive trade practices, and trademark dilution. Before me now is RFE's motion to dismiss the complaint for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

         I. BACKGROUND

         According to the allegations of the complaint, which I accept as true for purposes of deciding the motion to dismiss, Rice has, since 1998, produced board games, card games, parlor games, and accessories with a zoo theme. Rice registered ZOO as a trademark, which he uses in connection with his card games and other products. The image below shows an example of how Rice uses the ZOO mark. (It appears on the packaging of one of his card games.)

         (Image Omitted)

         Rice alleges that his ZOO products have been sold nationwide for more than 18 years through various outlets, including major retailers such as Barnes & Noble, Amazon, and Target, as well as zoo gift shops and other specialty stores. Rice also sells the products through his website.

         Reading for Education advertises and promotes a school fundraising program under the brand “SchoolStore.” A school that participates in the program will send a booklet of postcards home with a student to give to his or her parents. If the postcards are completed and returned to school, the student receives a prize. The literature accompanying the booklet tells parents that their child will “automatically receive a Squishy Zoo Mystery Animal just for completing the postcard booklet and returning it to school tomorrow.” Compl. Ex. D, p.2. This statement is printed next to the following image:

         (Image Omitted)

         This image appears to show that “Squishy Zoo Mystery Animals” are foam toy animals in the shape of either a cow, unicorn, giraffe, turtle, or tiger.

         Rice alleges that RFE's use of the word “zoo” in connection with its SchoolStore program infringes his ZOO trademark. He alleges that RFE's use of the word causes confusion among consumers over whether he is the source of RFE's product. Rice also alleges related claims for trademark dilution, unfair competition, and violation of Wisconsin's Deceptive Trade Practices Act, Wis.Stat. § 100.18. RFE moves to dismiss all claims.

         II. DISCUSSION

         To avoid dismissal under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must, at a minimum, “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. In construing a plaintiff's complaint, I assume that all factual allegations are true but disregard statements that are conclusory. Iqbal, 556 U.S. at 678.

         A. Trademark Infringement

         Counts I and II of the complaint allege claims under the Lanham Act for trademark infringement and unfair competition. See 15 U.S.C. § 1114(1)(a) (infringement of registered marks); 15 U.S.C. § 1125(a) (infringement of unregistered marks and unfair competition). Count III alleges a claim for unfair competition under Wisconsin common law. RFE moves to dismiss these three claims on the ground ...


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