United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN, UNITED STATES DISTRICT JUDGE
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.
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.)
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.
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 appears to show that “Squishy Zoo Mystery
Animals” are foam toy animals in the shape of either a
cow, unicorn, giraffe, turtle, or tiger.
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.
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.
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 ...