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Specht v. Google

August 3, 2009


The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court

Hon. Harry D. Leinenweber


On June 4, 2009, Plaintiffs Erich Specht (hereinafter, "Specht"), Android Data Corporation (hereinafter, "ADC"), and The Android's Dungeon Inc. (hereinafter, "ADI") filed their First Amended Complaint (the "FAC") against Defendants Google, Inc. (hereinafter, "Google"); Google's wholly-owned subsidiary, Android, Inc.; Andy Rubin, Nick Sears, Rich Miner, and Chris White, all of whom are current or former Google employees (hereinafter, the "Individual Defendants"); the Open Handset Alliance ("the OHA"); and 46 other Corporate Defendants (the "Corporate Defendants"). On June 22, 2009, Defendants Google, Android, Inc., and the Individual Defendants (hereinafter, collectively, the "Google Defendants") filed a Motion to Dismiss all claims in the FAC. For the reasons discussed herein, Defendants' Motion to Dismiss is granted in part and denied in part.


Specht is a computer software developer and internet application service provider. FAC ¶ 12. In 1999, Specht began using the mark "ANDROID DATA" to describe certain software and hardware products and services. Id. at ¶¶ 13-15. Specht continues to use and develop the ANDROID DATA line of products. Id. at ¶ 17. In June 2000, Specht, through his wholly-owned corporation, ADC, filed an application to register ANDROID DATA with the United States Patent and Trademark Office (the "PTO"). Id. at ¶ 18. On October 22, 2002, the PTO granted ADC the trademark for "computer e-commerce software to allow users to perform electronic business transactions via a global computer network." FAC Ex. B.

In July 2005, Google hired the Individual Defendants and acquired Android, Inc., a company formed in 2003 by the Individual Defendants for the purpose of developing computer software for mobile phone devices. FAC ¶¶ 20-21. Plaintiffs allege that, as part of this acquisition, Google purchased assets that it is now using for its infringing Android products, including the trademark, software source code, goodwill, and domain name. Id. at ¶ 22.

On October 31, 2007, Google applied with the PTO for the "ANDROID" mark for use in commerce or in connection with software or hardware products or services. Id. at ¶ 25. The PTO initially denied this application in February 2008, and, after Google appealed the decision, affirmed the denial in a final decision dated August 20, 2008. Id. at ¶¶ 30, 33. The PTO explained that Google's use of ANDROID encompasses a broad range of goods and/or services, including "providing e-commerce software" that can be used on mobile devices, computers, computer networks, and global communication networks. FAC Ex. F. In denying Google's registration, the PTO cited likelihood of confusion with Plaintiffs' ANDROID DATA mark, determining that the marks are similar in "sound, appearance, and commercial impression" and share the dominant term, ANDROID, and "the applicant's [Google] goods are closely related to the registrant's [Plaintiffs] goods and commonly emanate from the same source as the registrant's goods." Id.

On November 5, 2007, Google and the OHA, "a partnership or business alliance of 47 firms," including the Corporate Defendants, launched a software product called "Android." FAC ¶ 26. In April 2008, the OHA presented Android at an international conference. Id. at ¶ 31. In October 2008, Google and the OHA released portions of the source code for the Android software, which, according to Plaintiffs, encouraged and gave developers the ability to use the infringing Android operating system to create infringing Android applications for use with Defendants' infringing products. Id. at ¶¶ 35-36. Since November 2007, Google, OHA, and OHA members "have been and are continuing to use Plaintiffs' Android mark in advertising, promotional materials, and press releases" without Plaintiffs' permission. Id. at ¶ 49; see also id. at ¶¶ 42-43, 59-61. Additionally, Defendants have sold equipment bearing the ANDROID mark and have released several versions of Android software. Id. at ¶¶ 34, 43-47.

Based on these factual allegations, Plaintiffs filed the FAC, alleging two claims under the Lanham Act, trademark infringement (15 U.S.C. § 1114, Count I) and unfair competition (15 U.S.C. § 1125(a), Count II), and a violation of the Illinois Deceptive Trade Practices Act (the "DTPA") (815 ILCS 510/2, Count III).

The Google Defendants now bring a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(6). Defendants first argue that, by lumping the 52 Defendants together and failing to distinguish each Defendant's wrongful conduct, Plaintiffs failed to plead facts supporting any of their legal claims.

Second, Defendants contend that Plaintiffs did not demonstrate that this Court has personal jurisdiction over Android, Inc. and the Individual Defendants. Third, Defendants argue that venue is not proper in this District. Fourth, Defendants argue that Plaintiffs Specht and ADC have failed to establish that they have standing to bring this suit. Finally, if the Court determines that dismissal is inappropriate, Defendants urge the Court to require Plaintiffs to amend the FAC to provide a more definite statement of their claims.


A. Failure to State a Claim

1. Standard of Review

In order to survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1940 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 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." Iqbal, 129 S.Ct. at 1940. A complaint need not set forth all of the relevant facts, however, it must describe the claim with sufficient detail so as to provide the defendants with fair notice of what the claim is and the grounds upon which it rests. E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir., 2007); FED. R. CIV. P. 8(a). The Court accepts as true all well-pleaded facts alleged in the complaint and draws all reasonable inferences in a light ...

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