The opinion of the court was delivered by: Judge Ronald A. Guzmán
MEMORANDUM OPINION AND ORDER
Publications International, Ltd. ("PIL") has sued LeapFrog Enterprises, Inc. for declaratory relief on a federal trademark claim, and declaratory, injunctive and monetary relief on two state law claims. The case is before the Court on LeapFrog's motion to dismiss all of the claims pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1).*fn1 For the reasons provided below, the Court grants the motion.
In February 2008, PIL introduced its "POINGO" pen reader, "a pen-like electronic . . . device" that can read microscopic codes in specially-made books, at the American International Toy Fair. (Am. Compl. ¶¶ 11-12.) PIL has filed two intent-to-use trademark applications with the United States Patent and Trademark Office ("PTO") to register the POINGO mark for use in connection with its pen reader system. (Id. ¶ 13.)
On April 7, 2008, LeapFrog's counsel sent a letter to PIL's president that said: It has come to our attention that [PIL] intends to launch a reading pen product under the mark POINGO in August, 2008. . . .
Please be advised that long before PIL announced the launch of its reading pen product, LeapFrog was using the mark POINGO for its own reader pen both internally and in presentations to retailers. As a result, LeapFrog has priority rights to the use of the mark POINGO.
Furthermore, LeapFrog's long prior use of the coined mark POINGO within LeapFrog indicates that PIL's decision to use the same mark may be due to PIL's misappropriation of LeapFrog's confidential and proprietary information. Therefore, in order to determine whether PIL's use of the mark POINGO resulted from such a misappropriation, we request that you provide us with an explanation as to how PIL chose the mark POINGO for its pen reading product. (Id., Ex. A, Letter from Hughes to Maddrell of 4/7/08.)
On April 14, 2008, PIL's counsel responded as follows:
[Y]ou assert that LeapFrog has priority on the use of the mark POINGO, [but] you have not provided any information on your claimed date of first use. Neither . . . Leapfrog's website nor any search of the internet reveals any use by LeapFrog of the phrase POINGO or any mark even similar to such phrase. . . . [Y]our client's website reveals an optic pen children's book product under the trademark "TAG", [but] no where in the description of the TAG product is the phrase POINGO referenced. . . . .
We ask, therefore, that you immediately provide us with any information which confirms a date of the purported adoption by your client of the mark POINGO, particularly any materials which you claim were shown to third parties. (Id., Ex. B, Letter from Weber to Hughes of 4/14/08.)
Subsequently, LeapFrog told PIL that it had used "the mark POINGO . . . in a presentation to one of LeapFrog's retailers at least as early as November 14, 2006" and had "used the mark internally prior to that date." (Id., Ex. C, Letter from Hughes to Weber of 4/17/08.) LeapFrog also repeated its request for an explanation "as to how and when PIL chose the mark POINGO, in order to assure LeapFrog that PIL's use of the mark did not result from any . . . misappropriation." (Id.)
On May 7, 2008, LeapFrog's counsel reiterated its demand that PIL explain how it chose the POINGO mark and told PIL that if it refused to do so, LeapFrog could get the information through litigation. (Id. ¶ 25.)
On June 10, 2008, LeapFrog announced that its "TAG" pen reader system was available for sale. (See http://www.leapfrog.com/en/home/about_us/press_room.htmlLeapFrog (follow "June 10,  Tag You're It: LeapFrog's New Reading System Is Now Available" hyperlink).
To date, LeapFrog has neither released a product called POINGO into the marketplace nor filed any applications with the PTO to ...