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T-4 Corp. v. McDonald's Corp.

United States District Court, D. Montana, Missoula Division

July 17, 2017

T-4 CORPORATION, Plaintiff,


          Dana L. Christensen, United States District Court Chief Judge

         Before the Court is McDonald's Corporation, Leo Burnett Company, Inc., and Publicis Groupe's (hereafter collectively "Defendants") motions to dismiss. Defendants argue that this case should be dismissed because: (1) Plaintiff has failed to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6); and (2) Plaintiffs claim against Publicis Groupe fails pursuant to Rule 12(b)(2) for lack of personal jurisdiction. For the reasons below, the Court grants the motions.


         "On a motion to dismiss, material allegations of the complaint are taken as admitted, and the complaint is to be liberally construed in favor of the plaintiff." Kennedy v. H&MLanding, Inc., 529 F.2d 987, 989 (9th Cir. 1976).

         Plaintiff T-4 Corporation ("T-4") is a Montana business that sells consumer products, oral hygiene products, decorated apparel, lotions, promotional items, printed matter, and other products. Defendant McDonald's Corporation ("McDonald's") is a fast-food restaurant that serves food and drink products. Defendant Leo Burnett Company, Incorporated ("Burnett") is a global advertising company based in Chicago, Illinois. Defendant Publicis Groupe ("Publicis") is a global communications group based in Paris, France, and is the parent organization of Burnett.

         McDonald's began using the phrase "I'M LOVIN' IT" in a nationwide campaign in 2003. McDonald's registered the mark with the United States Patent and Trademark Office ("USPTO") in 2003, and registration was granted on July 26, 2005. The mark indicates that it is used in "restaurant services, " is located in International Class 43, and was first used in commerce on September 23, 2003. McDonald's has three other "I'M LOVIN' IT" trademarks registered in International Classes 29, 30, and 32.

         T-4 started using its ♥'n trademark in 2006. T-4 registered the "♥'n" mark with the USPTO on January 9, 2007, no. 3, 197, 100, and its "♥'N" mark on March 19, 2013, no. 4, 304, 841. T-4 intended for its mark to represent the words "Lov'n" or "Lovin." T-4 also registered a book entitled "The Lov'n Book for those who do" with the USPTO under federal copyright registration, no. TXu 1-347-097. T-4's claims relate to an advertising campaign initiated by Defendant Burnett on behalf of McDonald's in 2015. The campaign entitled "McDonald's Pay With Lovin' Instant Win Game" (hereafter referred to as the "Campaign") ran from February 2, 2015 to February 15, 2015 and encouraged customers to engage in a "Lovin' Act" such as "calling a loved one" or "blowing a kiss" to receive a free meal from a participating McDonald's restaurant. The Campaign was also aired during the National Broadcasting Company's February 1, 2015 Super Bowl XLIX broadcast. T-4 alleges that McDonald's engaged in direct and in-person customer contact in its restaurants that used stickers and clothing bearing the ♥'N trademark. The sticker at issue includes McDonald's iconic golden arches logo at the top with the following text: "I Paid With ♥N." T-4 became aware of this alleged misappropriation and issued and served a cease and desist demand letter to McDonald's. McDonald's continued to use the ♥N mark in its Campaign.


         Rule 12(b)(6) motions test the legal sufficiency of a pleading. Fed.R.Civ.P. 12(b)(6). Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "To survive a 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 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the court can draw a "reasonable inference" from the facts alleged that the defendant is liable for the misconduct alleged. Id.

         A defendant may move, prior to trial, to dismiss a complaint for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2).

The power of a federal court entertaining a case based on diversity of citizenship to exercise personal jurisdiction over a nonresident defendant turns on two independent considerations: whether an applicable state rule or statute potentially confers personal jurisdiction over the defendant and whether assertion of such jurisdiction accords with constitutional principles of due process.

Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1286 (9th Cir.1977) (citations omitted). The party invoking jurisdiction of a federal court has the burden of establishing jurisdiction. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936). It is the plaintiffs burden to demonstrate facts supporting a finding of jurisdiction to avoid a motion to dismiss. Data Disc, 557 F.2d at 1285. "[T]he plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir.2010) (citation and quotation omitted). On considering a motion to dismiss for lack of personal jurisdiction, uncontested allegations in the complaint must be read as true and disputes of fact are resolved in favor of the plaintiff. Id.

         Under Montana law, courts follow a two-step test to determine whether personal jurisdiction exists. Milky Whey, Inc. v. Dairy Partners, LLC, 342 P.3d 13, 17 (Mont. 2015). Courts first determine whether jurisdiction exists under Montana's long-arm statute, Montana Rule of Civil Procedure 4(b)(1). Id. If personal jurisdiction exists under that first step, courts then consider "whether the exercise of personal jurisdiction conforms with the traditional notions of fair play and substantial justice embodied in the due process clause." Id.


         I. Personal Jurisdiction

         Montana Rule of Civil Procedure 4(b)(1) incorporates principles of general and specific personal jurisdiction. Simmons Oil Corp. v. Holly Corp., 796 P.2d 189, 194 (Mont. 1990). The first sentence of the rule expresses the principle of general personal jurisdiction by inquiring as to whether a party is "found within" Montana. Id. A party is found within Montana if it is physically present in the state or if its contacts with the state are "so pervasive that it... may be deemed to be physically present." Id. A nonresident defendant must maintain "substantial" or "continuous and systematic" contacts with Montana to be found within the state. Id.

         The claim for relief may arise from any of the acts listed in Rule 4(b)(1)(A-G) and create specific jurisdiction for the purpose of litigating that particular claim. Milky Whey, Inc., 342 P.3d at 17. Thus, absent general personal jurisdiction, courts in Montana may exercise specific jurisdiction over any person

as to any claim for relief arising from the doing personally, or through an employee or agent, of any of the following acts:
(A) the transaction of any business within Montana;
(B) the commission of any act resulting in accrual within Montana ...

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