Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bear Omnimedia LLC v. Mania Media LLC

United States District Court, D. Nevada

May 22, 2018

BEAR OMNIMEDIA LLC, Plaintiff,
v.
MANIA MEDIA LLC dba “BEAR FILMS” and BEARFILMS.com; et al.,

          ORDER (ECF NOS. 97, 100)

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This thrice-amended action concerns the right to use the term “BEAR.” (See generally ECF No. 58.) Before the Court are two motions to dismiss. (ECF Nos. 97, 100). Pursuant to Nevada's anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute, [1] Defendant Mania Media LLC dba “BEAR FILMS” and BEARFILMS.com (“Mania”) moves this Court to specially dismiss Bear Omnimedia LLC's (“Plaintiff”) state law causes of action, as against Mania (the “Anti-SLAPP Motion”). (ECF No. 97.) Pursuant to Fed.R.Civ.P. 12(b)(6), Defendant Instagram LLC (“Instagram”) moves to dismiss Plaintiff's Third Amended Complaint (“TAC”) for failure to state a claim against Instagram (“12(b)(6) Motion”).[2] (ECF No. 100 at 2.)

         For the reasons set forth below, Mania's Anti-SLAPP Motion (ECF No. 97) is denied, and Instagram's 12(b)(6) Motion (ECF No. 100) is granted.

         II. RELEVANT BACKGROUND

         Plaintiff is the publisher of BEAR magazine and movies. Plaintiff alleges it is the owner of three design or logo marks that use the terms “BEAR” or “BUTCH BEAR.” (See ECF No. 58 at 4-5, 13-19.) However, Plaintiff does not claim any ownership of any word marks for the “BEAR” or “BUTCH BEAR” logos.

         Plaintiff's TAC asserts causes of action for trademark infringement, trademark dilution, unfair competition, false description, violation of The Anticybersquatting Consumer Protection Act, common law unfair competition, and common law injury to business reputation. These claims are alleged against various non-Instagram Defendants: Mania; CM Publications Limited; Bear World Media Ltd.; Webid Consulting, Ltd.[3]; and Steven Tilotta (“the non-Instagram Defendants”). The TAC notes the non-Instagram Defendants do business under names that incorporate the term “BEAR, ” and sell or offer to sell goods and services, “aimed at the identical market to that of Plaintiff's goods.” (Id. at 6.) The TAC contends that the non-Instagram Defendants' use of “BEAR” is “deceptively and confusingly similar to Plaintiff's long-standing trademarks.” (Id.)

         Instagram offers its users content-sharing services and the term “BEAR” is not part of its incorporation. (ECF 100 at 4.)[4] Plaintiff added Instagram to the TAC as a defendant, and generically alleges the same claims against Instagram as against the non-Instagram Defendants. Additionally, the TAC specifically alleges that Instagram “is an accessory to the Infringing Promotions and Infringing Merchandise alleged against” certain “sites maintained on Instragram.com.” (ECF No. 58 at 3.)

         III. MANIA'S ANTI-SLAPP MOTION (ECF NO. 97)

         The Court will deny Mania's Anti-SLAPP Motion because Mania fails to carry its burden to sufficiently establish that Plaintiff asserted the relevant state causes of action against Mania based upon protected communication.

         A. Legal Standard

         The Nevada anti-SLAPP statute (“the Statute”) permits defendants to gain early dismissal of civil claims through a special motion to dismiss. NRS § 41.660. A party[5]engaging in communication, as defined by the statute, “is immune[ized] from any civil action for claims based upon the communication.” NRS § 41.650. Anti-SLAPP statutes are available to litigants in federal court. Compare U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-73 (9th Cir. 1999) (noting, as a matter of first impression, California's anti-SLAPP statute may be applied in federal diversity suits as the statute would not result in a direct collision with the Federal Rules, despite commonality of purpose in weeding out unmeritorious claims) with Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (stating “a federal court can only entertain anti-SLAPP special motions . . . in connection with state law claims”).

         Albeit called a “motion to dismiss, ” federal courts treat anti-SLAPP motions as a species of motion for summary judgment. See, e.g., Haack v. City of Carson City, No. 3:11-cv-00353-RAM, 2012 WL 3638767, at *3-5 (D. Nev. Aug, 22, 2012); Las Vegas Sands Corp. v. First Cagayan Leisure & Resort Corp., No. 2:14-CV-424-JCM-NJK, 2016 WL 4134523, at *3 (D. Nev. Aug. 2, 2016).

         Evaluating a Nevada anti-SLAPP motion is a two-step process. The moving party bears the burden on the first step, and the non-moving party bears the burden on the second. See John v. Douglas Cty. Sch. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.