VendEver LLC v. Intermatic Manufacturing Ltd.
3:11-cv-00201
N.D. Tex.Sep 16, 2011Background
- VendEver LLC sues Intermatic Manufacturing Ltd., Marty Man Smith, Ralph Orlowski, and Grand Products in the ND Tex for false advertising and unfair competition related to cotton candy vending machines.
- VendEver alleges Intermatic falsely touts U.S. and European patents and a patented water system to divert customers, causing lost sales to VendEver.
- Intermatic allegedly threatened patent/trademark litigation and cybersquatting against VendEver and interfered with industry certification efforts.
- VendEver asserts eight causes of action including Lanham Act false advertising, common law false advertising, business disparagement, tortious interference, unfair competition, conspiracy, and defamation; Grand Products was later dismissed without prejudice.
- Intermatic moves to dismiss under Rule 12(b)(6), Rule 9(b), and Rule 12(b)(2); the court grants in part and denies in part.
- The court allows VendEver to amend otherwise-dismissed counts within 20 days, with a brief synopsis and limited briefing on amendments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Intermatic is subject to Texas jurisdiction | VendEver contends Intermatic purposefully directed activity into Texas. | Intermatic asserts no Texas contact and challenges jurisdiction. | Jurisdiction upheld; 12(b)(2) denial |
| Whether VendEver states a Lanham Act false advertising claim | VendEver alleges false patent status and misleading markings deceived consumers. | Intermatic argues statements were true patent markings. | Lanham Act claim survives |
| Whether VendEver states a common-law false advertising claim | VendEver reliance on deceptive marketing supports state false advertising claim. | Insufficient factual basis under Texas law for common-law false advertising. | Common-law false advertising claim survives to extent consistent with Lanham Act ruling |
| Whether defamation, business disparagement, tortious interference, unfair competition, and conspiracy claims survive | VendEver pleads multiple independent torts and conspiracies with plausible damages. | Intermatic challenges sufficiency and scope of pleadings for these claims. | Defamation dismissed; business disparagement, tortious interference with prospective relations, and unfair competition survive; conspiracy claims dismissed |
Key Cases Cited
- World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (minimum contacts and foreseeability for jurisdiction)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (purposeful availment and fair play in due process)
- Twombly, 550 U.S. 544 (2007) (plausibility standard for pleading claims)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (requires facial plausibility, not mere conceivability)
- In re Katrina Canal Breaches Litig., 495 F.3d 191 (5th Cir. 2007) (pleading standards and adequacy under Rule 8)
- WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) (defamation pleading specificity requirements)