Outdoor Pro Shop, Inc. v. Monster Energy Company

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION OUTDOOR PRO SHOP, INC., Case No. 20-cv-05999-BLF 8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS WITH LEAVE TO AMEND 10 MONSTER ENERGY COMPANY, [Re: ECF 9] 11 Defendant.

13 In this trademark dispute, Defendant Monster Energy Company (“Monster”) has filed a motion to dismiss on the bases that Plaintiff Outdoor Pro Shop, Inc. has failed to plead the date it first used its unregistered marks in commerce and failed to plead that its alleged trademarks are inherently distinctive or have become distinctive by acquiring secondary meaning. See Mot., ECF 9. Outdoor Pro Shop opposes this motion, arguing that these facts are not required to be pled. See Opp’n, ECF 12. The Court agrees with Monster and GRANTS the motion with leave to amend.

19 Outdoor Pro Shop must plead both the dates of first use for its marks and the specific type of distinctiveness alleged. See FreecycleSunnyvale v. The Freecycle Network, Inc., No. C 06- 00324 CW, 2006 WL 2060431, at *6 (N.D. Cal. July 25, 2006) (finding party must “specifically allege whether the Marks have inherent or acquired distinctiveness”) and GeoData Sys. Mgmt., Inc. v. Am. Pac. Plastic Fabricators, Inc., No. CV 15-04125 MMM (JEMx), 2015 WL 12731920, at *9 (C.D. Cal. Sept. 21, 2015) (“Thus, to allege priority, GeoData can plead either the date it first used the mark in commerce or the date it registered the trademark.”). Because Outdoor Pro Shop has failed to do either, the Court GRANTS Monster’s motion to dismiss. Outdoor Pro Shop shall file its amended complaint within 14 days of this order.

2 IT IS SO ORDERED.

4 || Dated: June 21, 2021 kom Lh ham th) BETH LABSON FREEMAN 6 United States District Judge e 12

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