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Lovetap, LLC v. CVS Health Corp.

United States District Court, N.D. Georgia, Atlanta Division

July 31, 2017

LOVETAP, LLC, Plaintiff,
CVS HEALTH CORPORATION, et al., Defendants.


          THOMAS W. THRASH, JR. United States District Judge

         This is a trademark infringement action. It is before the Court on the Defendants CVS Health Corporation, CVS Pharmacy, Inc., and MinuteClinic, LLC's (collectively “CVS”) Motion to Dismiss [Doc. 19-1]. For the reasons stated below, the Defendants' Motion to Dismiss [Doc. 19-1] is DENIED.

         I. Background

         In 2012, the Plaintiff Lovetap, LLC's founder and sole employee, Anna Tucker, began developing the software application called “Life”, and eventually published the Life app through Lovetap in 2013.[1] The Life app allows users to log, keep track of, and analyze virtually all matters relating to their personal health and wellness, such as symptoms, mood, weight, nutrition, sleep, sex, fitness, medication, general health, menstrual cycles, fertility, ovulation, and pregnancy. The Life app also allows users to setup and create reminders for prescription refills, daily reminders for medication, daily reminders for vitamins, physician appointments, self-exams, menstrual days, fertility windows, and ovulation.[2] The app is currently offered for sale through the Apple App Store and sold in over 150 countries, including the United States.[3] Since it was published, the app has grown quickly in popularity, and is now consistently one of the top 10 most downloaded apps in the U.S. App Store's Health & Fitness Category.[4]

         On September 3, 2013, Lovetap filed a U.S. federal trademark application for a geometric heart design as its primary logo (the “Lovetap Mark”), an example of which is shown below:[5]

         (IMAGE OMITTED)

         The trademark application stated that it was for "Computer application software for mobile phones, namely, software for tracking and predicting menstrual cycles, ovulation, fertility, and women's health and wellness issues" in Class 9. The Lovetap Mark eventually registered on October 21, 2014.[6]

         (IMAGE OMITTED)

         CVS, which operates a retail and health care business, initiated a rebranding of its corporate identity in 2014.[7] The result was aheart-shaped design as the companies' logo, an example of which is included below:[8]

         Since September 2014, CVS has applied for federal registration of twenty-six trademarks that include the geometric heart design of the CVS logo (the “CVS Trademarks”).[9] Since then, eleven of those applications have registered, the earliest of which did so on June 21, 2016.[10]

         On September 20, 2016, Lovetap filed this action against CVS alleging trademark infringement under federal and state law, and that CVS' use of the CVS logo dilutes the Lovetap Mark pursuant to Georgia's dilution statute, O.C.G.A. § 10-1-451(b). The Defendants now move to dismiss Lovetap's state law dilution claim.

         II. Legal Standard

         A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a “plausible” claim for relief.[11] A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is “improbable” that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely “remote and unlikely.”[12] In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff.[13] Generally, notice pleading is all that is required for a valid complaint.[14] Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests.[15]

         III. Discussion

         The entirety of the Defendants' argument for dismissal rests on § 1125(c)(6) of the Trademark Dilution Revision Act, which states that “[t]he ownership by a person of a valid registration…on the principal register under this chapter shall be a complete bar to” a state law dilution claim.[16] Lovetap, on the other hand, argues that because it is challenging the validity of the Defendants' trademark registration, dismissal would be inappropriate at this time. The Defendants, meanwhile, argue that allowing the Plaintiff's dilution claim to move forward simply because it has challenged the validity of the registration would undermine the purpose of § 1125(c)(6). Thus, the only question before the Court at this time is whether Lovetap's state law dilution claim is subject to dismissal despite the fact that Lovetap is challenging the validity of, and seeks to cancel, the Defendants' federal trademark registrations. The Court holds that it is not.

         The Court begins with the language of the statute. Section 1125(c)(6) provides an affirmative defense which bars all state law dilution claims if a trademark is federally registered. But the statute states that only “valid registration[s]” enjoy this protection. “It is the duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.”[17] The Court will not presume that Congress includes extraneous verbiage in the laws that it enacts; each word and phrase is considered to be the result of a deliberate policy choice. The validity of a trademark must, therefore, hold at least some value in determining the availability of § 1125(c)(6) as a defense. This means that a successful challenge to a trademark registration's validity would vitiate the Defendants' reliance upon § 1125(c)(6).[18]

         All that remains is to define validity in the context of the statute. Lovetap suggests that “valid” means only those registrations that are “not subject to cancellation.”[19] Not only does the Court find this to be the only reasonable interpretation of the statutory language, but it has also enjoyed the consistent support of other federal courts.[20] After all, courts must not only presume that Congress intended for each word to have meaning, but also that it “intended the ordinary meaning of the words it used…”[21] And nothing could be more plain, given its context, than that the word “valid” means a registration that meets all of the law's requirements, that bears up to scrutiny, and would survive someone challenging it.

         The Defendants do not expressly offer a contrary definition, but instead rely on “practical effect” and “congressional intent” to argue that Lovetap's challenge should still be subject to the § 1125(c)(6) defense.[22] The Defendants argue that it was Congress' intent to “(i) incentivize federal registration of marks, and (ii) prevent states from regulating the use of federally registered marks...”[23] The Defendants contend that the only way to achieve this intent, and thus the only proper interpretation of the statute, is to provide a sort of super defense in which a defendant must merely show that the trademarks are registered to avoid all dilution claims, regardless of whether those registrations are valid or not. This would of course render the word “valid” completely superfluous, which as discussed above, is a non-starter in statutory interpretation.

         Perhaps realizing this, the Defendants attempt to give meaning to the word “valid” by distinguishing between different types of invalidity. For example, the Defendants argue that the following would be situations where a challenge to ...

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