
    SOLMETEX, LLC, Plaintiff, v. APAVIA LLC, Dentalez Inc., and Ramvac Dental Products Inc., Defendants.
    CIVIL ACTION NO. 4:15-CV-40144-TSH
    United States District Court, D. Massachusetts.
    Signed 02/25/2016
    Aaron D. Rosenberg, Daniel J. Lyne, Steven M. Veenema, Murphy' & King, PC, Boston, MA, for Plaintiff.
    David Koha, Julie Rising Bryan, Casner & Edwards LLP, Robert J. Kaler, Holland & Knight LLP, Boston, MA, Steven L. Caponi, Blank Rome LLP, Wilmington, DE, for Defendants.
   MEMORANDUM AND ORDER ON APAVIA, LLC’S MOTION TO DISMISS (Docket No. 39)

HILLMAN, DISTRICT JUDGE.

SolmeteX, LLC (Plaintiff) and Apavia, LLC (Apavia or Defendant) manufacture competing amalgam separators that are used to remove amalgam particles from dental wastewater streams. Plaintiffs amalgam separator is sold under the mark “Hg5.” Plaintiff alleges that Apavia, as well as its distributors, RAMVAC Dental Products, Inc. (RAMVAC) and DentalEZ, Inc. (DentalEZ), are infringing on Plaintiffs federally registered trademark by marketing their product under the name “Amalgam HoG.” Apavia moves to dismiss all claims against it, on the ground that it was not involved, in developing the allegedly infringing name. For the reasons set forth below, Apavia’s motion (Docket No. 39) is denied.

Background

The following facts, taken from Plaintiffs verified complaint and attached exhibits, are assumed true for the purposes of this motion. Since 2000, Plaintiff has been manufacturing and distributing a line of amalgam separators under the mark “Hg5.” The mark was federally registered in 2002. Enpress, LLC (Enpress), a water filtration company, is the parent company of Apavia.* Between 2013 and 2014, one of Plaintiffs executives provided confidential information 1 to senior executives of En-press. This information included Plaintiffs commission structures, dealer pricing, manufacturing' processes, manufacturing costs, testing procedures, customer relationships, and financial results and revenue projections. Several of these Enpress executives then formed Apavia, which began manufacturing and selling a new amalgam separator that competes with the Hg5.

The two other Defendants, DentalEZ and RAMVAC, are former authorized resellers of the Hg5. They now resell Apa-via’s amalgam separator instead. Plaintiff alleges that, “[o]n a date as yet uncertain, Apavia approached RAMVAC and Denta-lEZ with the intention of using RAM-VAC’s and DentalEZ’s well-known connection with the Hg5 to market Apavia’s separator using ' intentionally similar marks.” (Docket No. 1 at ¶ 36.) At the Chicago Dental Society’s Midwinter Meeting in February of 2015, Apavia, RAMVAC, and DentalEZ unveiled the new amalgam separator, calling it the “Amalgam HoG.” The full name of the new product, as shown on product labels and marketing materials, is “RAMVAC Amalgam HoG, powered by Apavia.” (Docket No. 1-5 at 3.)

In October of 2015, Plaintiff brought the instant suit against Apavia, DentalEZ, and RAMVAC, asserting the following counts against all Defendants: trademark infringement in violation of 15 U.S.C. § 1114 (count I); false designation of origin in violation of 15 U.S.C. § 1125(a) (count II); state law trademark infringement in violation of Mass. Gen. Laws ch. 110H, § 13 (count III); state law trademark dilution in violation of Mass. Gen. Laws ch. 110H, § 13 (count IV); and violation of Mass. Gen. Laws ch. 93A, § ll (count V). Plaintiff also moved for a preliminary injunction, which this Court denied in December of 2015, based on a low likelihood of success on the merits. Apavia now moves, pursuant to Rüle 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss all counts against it.

Standard of Review

To survive a Rule 12(b)(6) motion to dismiss, “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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d. 929 (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.” Id. (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Detailed factual allegations are not necessary to survive a motion to dismiss; however, the standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555,127 S.Ct., 1955.

In' evaluating‘a motion to dismiss* the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor. Langadinos, v. American Airlines, Inc., 199 F.3d 68, 68 (1st Cir.2000). In addition to the facts alleged and incorporated into the .complaint, “[a] district court may also consider ‘documents incorporated by reference, in [the complaint], matters of public record, and other matters susceptible to judicial notice.? ” Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir.2008) (quoting In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 20 (1st Cir.2003)). “[W]here the well-pleaded facts do not permit the court to infer more than the. mere possibility, of misconduct, the complaint has alleged— but it has not ‘show[n]’ — that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2)). On the other hand, a court may not disregard properly pled factual allegations, “even if it strikes a savvy judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556, 127 S.Ct. 1955.

Discussion

Apavia does not challenge the substance of Plaintiffs claims; instead, it argues that it cannot be held liable because it is not responsible for using the name “HoG” to market its amalgam separator. Rather, it manufactures the amalgam separator and then sells the product to. RAMVAQ and DentalEZ, and they decide how to market it. According to Apavia, the complaint does not sufficiently allege that Apavia was involved in the development of the “RAM-VAC Amalgam HoG” marketing campaign. Plaintiff, in response, argues that-Apavia is disputing the truth rather than the sufficiency of the facts alleged in the complaint. Furthermore, Plaintiff argues that even if Apavia’s version of the facts were true, it could still be liable for trademark infringement for having knowingly distributed its product to an infringing party.

Because Apavia has not challenged the sufficiency of Plaintiffs.substantive claims, the sole issue is whether Plaintiffs complaint alleges sufficient facts to tie Apavia to the alleged illegal activities. I find that the following facts are adequate to sustain the claims against Apavia at this stage of the lawsuit. Apavia was formed by Empress executives who had received confidential information from one of Plaintiffs executives. Apavia began manufacturing a competing amalgam separator and developed a relationship with Plaintiffs former resellers, RAMVAC and DentalEZ, whereby-they began distributing its new product. Apavia, RAMVAC, and DentalEZ jointly introduced the new product to the public in February of 2015 under the allegedly- infringing name “Amalgam HoG.” The product is now being distributed by RAMVAC and DentalEZ under the name “RAMVAC Amalgam HoG, powered by Apavia.” This name appears on product labels and marketing materials.

Drawing all reasonable inferences in Plaintiffs favor, the facts establish a plausible claim that Apavia was involved in the process of naming the Amalgam HoG; especially considering that Apavia’s own name is included in the product’s full title. The precise level of Apavia’s involvement is a. factual matter that will be determined — and may indeed be dispositive — at a later stage of this litigation.

Conclusion

For the reasons set forth above, Apa-via’s motion to dismiss (Docket’ No. 39) is denied.

SO ORDERED. 
      
      . In 2014, Plaintiff initiated a lawsuit against Apavia and others for theft of trade secrets. This action is currently pending in Superior Court.
     
      
      . At oral argument, Apavia argued for the first time that the state law claims shouíd be dismissed because Plaintiff has failed to allege sufficient connections to the Commonwealth. This argument was not briefed. Accordingly, it has been waived.
     
      
      . Apavia asks this Court to take judicial notice of (1) its website, which allegedly shows that it markets its amalgam separator as the “AVT Max”; and (2) the results of a Google search, using the terms "apavia amalgam separator,” which allegedly reveals that the term "Amalgam HoG” is associated only with RAMVAC and DentalEZ. Assuming arguendo that these sources would be appropriate subjects of-judicial notice, they would not change the outcome of this decision. Construing reasonable inferences in Plaintiff's favor, Apavia could be involved in-the naming process of the Amalgam HoG while: -also marketing, its product under a different label, Likewise, Apavia’s involvement is not foreclosed by the Amalgam HoG’s association with RAMVAC and Denta-lEZ. '> ■
     