United States District Court, D. Montana, Missoula Division
L. Christensen, United States District Court Chief Judge
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.
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).
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.
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.
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.
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.
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.
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."
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
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
(A) the transaction of any business within Montana;
(B) the commission of any act resulting in accrual within