Motion to Dismiss Granted in Part

Judge Gilstrap granted the motion to dismiss the claims of direct infringement, agreeing with Defendant that Plaintiff failed to plausibly allege that the accused products meet each and every element of the two asserted claims. The court also granted the motion as to the pre-suit claims of indirect and willful infringement, but denied the motion in all other respects, and granted leave to replead.

Joint Motion to Dismiss Denied

“While the parties can stipulate between themselves for these conditions,” Judge Payne wrote, “this Court will not try to bind any court where this claim might be refiled. Therefore, the conditions are DENIED without prejudice. The parties may refile the motion without the conditions, or make clear that the conditions are just a stipulation between the parties rather than an order of this Court.”

Motions to Dismiss Various Parts of Trademark Case Granted

Following the Federal Circuit’s reversal of her grant of a preliminary injunction, on remand Judge Rosenthal set aside the entry of default and granted in part a motion to dismiss as to a defendant, copyright, trademark dilution, and trade secret claims in a case involving medical treatment. The claims for trademark infringement, patent infringement, and breach of contract remain in the case.

Motion to Dismiss or Transfer


Judge Payne recommended denial of the motion to dismiss for improper venue, finding that the defendant did have a regular and established place of business in the EDTX when suit was filed. He also recommended that the motion to transfer venue to the San Antonio Division of the WDTX be denied, finding that the defendant had not shown that that forum was clearly more convenient. (It’s unclear if this was the map of Texas that the defendant was using).

Another Motion to Dismiss In A Trademark Case

But the procedural context is twisted in this case involving a whiskey distillery. The court previously remanded the state law causes of action, so the question presented was what to do with the dec action? After analyzing the Trejo factors which assist a judge in the discretionary call of whether to keep a case that has a parallel state court action, Judge Pitman concluded that all of the “federalism, fairness, and efficiency” factors weighed in favor of dismissal.

Motion to Dismiss Granted in Part

Plaintiff sought dismissal of the defendant’s claims that the plaintiff – a false eyelash manufacturer – engaged in false patent marking and false advertising in this case dealing with false eyelashes. (You can sort of see the theme, can’t you?) Judge Gilliland concluded that the false patent marking claim was not time-barred, that there was marking of an unpatented article, sufficient facts were pled to allege the requisite intent to deceive, and there was a sufficient showing of a competitive injury to require denial of the motion to dismiss. But the court did recommend granting the motion to dismiss the false advertising claim, noting that statements of inventorship – here “innovator” – are not actionable as false advertising, and recommended dismissal of the defendant’s claims against an individual as lacking personal jurisdiction.