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Motion to Dismiss Facebook v Teachbook

Motion to Dismiss Facebook v Teachbook

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Published by Lara Pearson
Teachbook's Motion to Dismiss Facebook's Trademark Infringement case
Teachbook's Motion to Dismiss Facebook's Trademark Infringement case

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Published by: Lara Pearson on Jun 16, 2011
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06/16/2011

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v.Honorable Marvin E. AspenMagistrate Young B. Kim
UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOISEASTERN DIVISION
FACEBOOK, INC.,Plaintiff,Case No. 11-cv-03052TEACHBOOK.COM LLC.Defendant.
Case: 1:11-cv-03052 Document #: 20 Filed: 06/15/11 Page 1 of 4 PageID #:161
 
 
MOTION TO DISMISS
Defendant Teachbook.com LLC hereby moves this honorable court to dismiss theunfounded Complaint filed by Plaintiff Facebook, Inc. in this matter. The grounds for thisMotion, as more fully set forth in the Memorandum of Law, Declaration of MichaelRodenbaugh, Exhibits, Reply Brief and at oral argument, are summarized as follows:1.
 
Since th
e marks bear no distinctive resemblance in sight, sound or commercial impression,there is no likelihood of confusion.
 2.
 
This Court cannot accept as true Facebook‟s conclusory allegation that these two
marks are
“substantially similar” since the allegation is belied by a mere glance at the marks themselves.Facebook‟s bare allegation that Teachbook‟s use of the word “BOOK” usurps a “distinctive part of the FACEBOOK Marks” is contradicted, not only by th
e stark dissimilarity of thewhole marks, but by voluminous and indisputable records of the USPTO.
 3.
 
Facebook‟s Complaint is directly contradicted by the
admissions it made just two months afteroriginally filing suit against Teachbook in California.
 4.
 
Facebook has never claimed distinctive rights to the word BOOK by filing a U.S. trademark application or using such mark in commerce.
5.
 
The word BOOK has never been registered as a trademark on the Principal Register of theUSPTO, and thus has never been registered as distinctive of 
any
good or service of 
any
 company, ever. (Id., Ex. XX.)
6.
 
Dictionary definitions and Facebook‟s own website indicate that „book‟ is generic for Facebook‟s core directory services.
 7.
 
Teachbook‟s and Facebook‟s services are not
similar, and are offered to different
audiences. Teachbook‟s audience is sophisticated an
d unlikely to be confused.8.
 
Facebook has not made any allegation of actual confusion.
Case: 1:11-cv-03052 Document #: 20 Filed: 06/15/11 Page 2 of 4 PageID #:162
 
 
9.
 
Facebook has not made any factual allegation of Teachbook‟s intent to trade off o
Facebook‟s reputation.
 10.
 
Facebook‟s complete failure to allege any facts or specific characteristics of the competing
marks which could possibly lead to confusion amongst consumers necessitates dismissal of theComplaint.
11.
 
Because the marks are so dissimilar, Facebook cannot possibly prove any trademark claim against Teachbook.TEACHBOOK.COM LLC.By: /s/ 
Michael L. Rodenbaugh 
 One of Their AttorneysMichael L. Rodenbaugh
 pro hac vice -
California Bar No. 179059RODENBAUGH LAW548 Market Street, Box #55819San Francisco, CA 94104415-738-8087
Anthony L. Abboud(ARDC # 6224356)ABBOUD LEGAL, LLC1363 Shermer Road, Suite 219Northbrook, Il 60062(tel) (847) 239-7165(fax) (847) 239-7202
CERTIFICATE OF SERVICE
I, Michael L. Rodenbaugh, an attorney, hereby certify that I served true and correct copiesof the
NOTICE OF MOTION,
in connec
tion with Defendants‟ Motion for 
Dismissal
 
uponopposing counsel by electronically filing same with the Pacer/ECF system on this 15
th
day of June2011.
Case: 1:11-cv-03052 Document #: 20 Filed: 06/15/11 Page 3 of 4 PageID #:163

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