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Plumeus, Inc. v. Intersog LLC

United States District Court, Seventh Circuit

October 11, 2013

PLUMEUS, INC., a Canadian corporation, Plaintiff,
v.
INTERSOG LLC, a Delaware limited liability company, Defendant.

MEMORANDUM OPINION AND ORDER

RONALD A. GUZMAN, District Judge.

Plaintiff sues defendant for, among other things, trademark dilution, breach of contract and tortious interference with business expectancy. Defendant has filed a Federal Rule of Civil Procedure ("Rule") 12 (b)(6) motion to dismiss these three claims. For the reasons set forth below, the Court grants the motion.

Facts

Plaintiff has been using the marks PSYCHTEST.COM and PSYCHTESTS in interstate commerce in connection with psychometric evaluations and psychological testing since 1996. ( Id. ¶¶ 8-9.) Plaintiff owns the U.S. trademark registration for PSYCHTESTS.COM, which is registered on the principal register of the U.S. Patent and Trademark Office, and has invested "substantial resources" in "numerous" marketing campaigns using the marks. ( Id. ¶¶ 9-11.)

In December 2008, plaintiff received an email from defendant that said:

We are doing applications for mobiles (iPhone, Android, etc). We are interested in your tests as we have developed an application for mobiles as MAD (mobile applications development) Tests, it is our own free product. Using this product, the user can pass tests which are located in our database. The authors can have the rights to use our interface to create their own tests and download them to the database.
We propose [to] you the exclusive right to put your tests in our database. The technical process will be our task. We need only your approvement and permit [sic]. We guarantee to display info about your site before each of test use.

( Id., Ex. B, Email from Def. to Pl. (Dec. 18, 2008).)

On January 30, 2009, plaintiff sent defendant a mutual confidentiality agreement ("MCA"), which both parties signed. (Compl. ¶ 17.) Pursuant to the agreement, plaintiff gave defendant confidential information about the development work it had done and planned to do on a mobile device app. ( Id. ¶ 18.) Despite months of subsequent negotiation, the parties never reached an agreement about developing an app, and the MCA remains in effect. ( Id. ¶ 19.) Nonetheless, in early 2009, defendant launched an app called PsychTests, using an "eyeball" logo much like the one plaintiff has used since 2004. ( Id. ¶¶ 13, 20.)

After discovering defendant's app in July 2012, plaintiff sent defendant two cease and desist letters. ( Id. ¶ 21; see Compl., Ex. C, Email from Pl. to Def. (Aug. 8, 2012); id., Ex. E, Letter from Pl. to Def. (Aug. 14, 2012).) On August 17, 2012, defendant sent a letter to plaintiff agreeing to:

1. Cease and desist from any further use of the infringing trademark and other imitations or simulations of Plumeus' trademarks, service marks or name "PsychTests"; and
2. Disable, remove and take down Psychtests 1.6.0 and any other versions from our website; and
3. Inform target users and clients that Pyschtests 1.6.0 and any other versions will no longer be available due to a breach of trademark rights and clearly distinguish that we, and all our affiliates or principals. have no relationship with Plumeus Inc.... and [its] affiliates and principals; and
4. Communicate with all depositories and download sites with instructions to take down Psychtests 1.6.0 ...

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