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Oriol v. H&M - Order Granting MTD

Oriol v. H&M - Order Granting MTD

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Published by slburstein
Oriol v. H&M - Order Granting MTD
Oriol v. H&M - Order Granting MTD

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Published by: slburstein on Nov 05, 2013
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[PROPOSED] ORDER GRANTING MOTION TO DISMISS
ACTIVE 22383585v2 10/29/2013
 1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ESTEVAN ORIOL, an individual, Plaintiff, v. H & M HENNES & MAURITZ L.P., a  New York Limited Partnership, Defendant. Case No.: CV 13-05088-R-MAN Hon. Manuel L. Real
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(6) AND DEFENDANT’S REQUEST FOR JUDICIAL NOTICE
 Date: October 28, 2013 Time: 10:00 a.m. Courtroom: 8, 2
nd 
 Fl., Spring St. Date Complaint Filed: July 16, 2013 Discovery Cutoff: None Trial Date: None
Case 2:13-cv-05088-R-MAN Document 22 Filed 11/04/13 Page 1 of 4 Page ID #:244
 
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER GRANTING MOTION TO DISMISS
ACTIVE 22383585v2 10/29/2013
 2 TO THE DISTRICT COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: On October 28, 2013, the Motion of Defendant H&M Hennes & Mauritz L.P. (“H&M”) to dismiss the Complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure came on regularly for hearing, in Courtroom 8 of this Court, the Honorable Judge Manuel L. Real, presiding. After full consideration of the pleadings, the moving, opposition, and reply  papers, and the argument of counsel, for the reasons set forth below, the Court:
 
GRANTS H&M’s request to dismiss Plaintiff’s cause of action for accounting, with prejudice;
 
GRANTS H&M’s request to dismiss statutory damages, with  prejudice; and
 
GRANTS H&M’s request to dismiss Plaintiff’s cause of action for copyright infringement. Plaintiff has until November 7, 2103 to amend the Complaint. To successfully plead a copyright infringement claim, in addition to pleading ownership of the copyright, the plaintiff must establish: (1) the defendant’s access to the copyrighted work, and (2) substantial similarity between the copyrighted work and the allegedly infringing material.
 Berkic v. Crichton
, 761 F. 3d 1289, 1291-92 (9th Cir. 1985). To be well pled, 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, 667-78, 129 S. Ct. 1937 (2009) (“
 Iqbal
”)
quoting Bell Atl. Corp v. Twombly,
 550 U. S. 544, 557, 127 S. Ct. 1955 (2007) (“
Twombly
”) . Mere legal conclusions may not be accepted as true and do not establish a plausible claim for relief.
 Iqbal
, 556 U. S. at 677-78. A court must not accept “naked assertion[s]” devoid of “further factual enhancement.”
 Id 
.,
quoting Twombly
, 550 U. S. at 557.
Case 2:13-cv-05088-R-MAN Document 22 Filed 11/04/13 Page 2 of 4 Page ID #:245
 
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER GRANTING MOTION TO DISMISS
ACTIVE 22383585v2 10/29/2013
 3 To meet the pleading requirement, Plaintiff is required to plead “the sources of the alleged similarity between his work and the defendant’s work.”
 Apple Computer, Inc. v. Microsoft Corp.
, 35 F. 3d 1435, 1443 (9th Cir. 2002) (“
 Apple
”);
Funky Films, Inc. v. Time Warner Entm’t, Inc
. 462 F. 3d 1072, 1072 (9th Cir 2006). Any allegations of similarity must be of protected elements, not unprotectible elements or ideas in the public domain.
 Bissoon-Dath v. Sony Comp.  Entm’t America Inc
., 694 F. Supp. 2d 1071, 1079 (N. D. Cal. 2010),
aff’d and adopted by
 653 F. 3d 898 (9th Cir. 2011) (published without opinion). The extrinsic test compares only the concrete, protectable elements of the works. The burden is on the Plaintiff to “identify the
source(s)
of the alleged similarity between his work and the defendant’s work.”
 Apple Computer 
, 35 F. 3d at 1443 (emphasis in original);
Funky Films,
462 F. 3d at 1072. Here, since Plaintiff ,
inter alia
, fails to identify the protectable elements of his work, fails to allege the sources of alleged similarity between his work and H&M’s T-Shirt; and relies on legal conclusions to alleged the two works are substantially similar, H&M’s request for dismissal is granted. The Copyright Act prohibits an award of statutory damages, costs, and 
 
attorneys’ fees if the allegedly infringing activity began before the copyright is registered: “[N]o award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for . . . any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after first publication of the work.” 17 U. S. C. § 412(2). The Complaint alleges that Plaintiff’s Image was first published in 1998. Compl. ¶ 11. Plaintiff admits that Plaintiff’s Image was not registered within three months of publication.
 Id 
. at ¶ 17.
Case 2:13-cv-05088-R-MAN Document 22 Filed 11/04/13 Page 3 of 4 Page ID #:246

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