MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants Angel Beds, LLC, the Merrick Group, LLC, the Merrick Group Capital 1, LTD, and Philip A. Krim’s (“Defendants”) Motion to Dismiss and Motion for a More Definite Statement (Instrument No. 9). After a careful review of the pleadings; the motion, responses, and replies; the record; and the applicable law, the Court DENIES Defendants’ Motion to Dismiss and Motion for a More Definite Statement (Instrument No. 9).
I.
A.
This is a trademark infringement case. Defendant Angel Beds (“Angel Beds”) and Plaintiff Tempur-Pedic (“Tempur-Pedic”) are competitors selling mattresses, pillows, and other bedding-related products.
B.
Tempur-Pedic is involved in the research, development, manufacture, supply, and sale of premium mattresses, pillows, and other comfort products. Tempur-Pedic products are made from TEMPUR Material, a type of viscoelastic, temperature sensitive, and pressure relieving foam that is proprietary to Tempur-Pedic and a valuable, highly confidential trade secret. (Instrument No. 1, at 4). Tempur-Pedic owns various registered and unregistered marks used in connection with the worldwide promotion, distribution, and marketing of Tempur-Pedic products. See (Instrument No. 1, at 7).
Tempur-Pedic maintains a commercial web site at the URL www.tempurpedic. com. Tempur-Pedic uses the Tempur-Pedic Marks to advertise and sell Tempur-Pedic products to consumers directly through its www.tempurpedic.com web site. Tempur-Pedic uses the Tempur-Pedic Marks elsewhere on the Internet to promote Tempur-Pedic products to consumers. In order to preserve the integrity of the Tempur-Pedic brand, Tempur-Pedic generally prohibits its authorized retailers from selling Tempur-Pedic products over the Internet. See (Instrument No. 1, at 8).
According to Plaintiffs, Defendants own and operate multiple commercial websites that sell mattresses and other ancillary products, including but not limited to www. angelbeds.com, www.tempurpediecomparison.com, and www.mattress-find. com. Tempur-Pedic claims that Defendants use the Tempur-Pedic Marks in a bold and facially improper fashion. Plaintiffs assert that Defendants’ improper use of Tempur-Pedic’s marks is intended to cause both initial consumer confusion and actual consumer confusion in order to drive consumers to Defendants’ websites, where Defendants sell products with names that are confusingly similar to the product names used by Plaintiffs. See (Instrument No. 1, at 8-9).
In 2005, Tempur-Pedic filed a civil lawsuit against Angel Beds, LLC, d/b/a www. angelbeds.com, styled Tempur World, LLC, et al. v. Angelbeds.com, Civil Action No. 1 l:06-CV-00455-SS, in the United States District Court for the Western District of Texas, Austin Division (“the 2005 Infringement Lawsuit”). The 2005 Infringement Lawsuit was based upon, among other acts, Angel Bed’s use of the Tempur-Pedic Mark as part of the domain name www.tempurpedic.angelbeds.com to mislead consumers and to make false and misleading commercial advertising claims relating to the Tempur-Pedic Marks and Tempur-Pedic products in violation of the Lanham Act, 15 U.S.C. § 1125(a), (b), and (c). (Instrument No. 1, at 9).
In 2006, Tempur-Pedic and Angel Beds entered into a written settlement agreement (“Settlement Agreement”) in an effort to resolve Tempur-Pedic’s claims in the 2005 Infringement Lawsuit. In the Settlement Agreement, Angel Beds agreed to, inter alia, (1) cease all use of the www. tempurpedic.angelbeds.com URL, (2) cease all use of the registered mark “Tempur-Pedic” and substantially-similar variations in keyword metatags and description metatags, and (3) cease all use of the registered mark “Tempur-Pedic” and substantially similar variations in title tags except that Angelbeds may use the phrase,
According to Plaintiffs, in 2008, Angel Beds began using Tempur-Pedic’s trademarks on its websites in a manner that violated both the express terms of the Settlement Agreement and also Tempur-Pedic’s trademark rights under the Lanham Act and Texas common law. In 2008, for example, Defendants registered the domain name www.tempurpediccomparison. com. Defendants used this website, whose name is confusingly similar to Plaintiffs’ website, to place misleading and confusing ads that redirect consumers to www. angelbeds.com. See (Instrument No. 1, at 10). Moreover, from June 2008 until at least September 2011, Angel Beds, without Tempur-Pedic’s knowledge or consent, began using numerous trademarks owned by Plaintiffs in a link block on its website in violation of Tempur-Pedic’s trademark rights under the Lanham Act and Texas common law and in direct violation of Angel Beds’ agreement to only use the Tempur-Pedic Marks in “truthful, comparative statements.” Id.
Additionally, the Plaintiff alleges that by June 2008, Angel Beds renamed its products and began using Tempur-Pedic’s product nomenclature in bad faith, causing the relevant public to be confused, mistaken, and deceived into wrongfully attributing source, sponsorship, approval and/or authorization of Defendants’ goods, services, and business operations to Tempur-Pedic. See (Instrument No. 1, at 11).
In 2011, when Plaintiffs learned of Defendants’ misconduct, Tempur-Pedic provided Defendants with written notice of its intellectual property rights, Defendants’ infringement of the Tempur-Pedic Marks, and the unfair practices which had come to Tempur-Pedic’s attention. Written notice was provided to Angel Beds on at least three separate occasions in 2011. Although Defendants agreed to change certain aspects of their websites after receiving these notices, Plaintiffs claim that Defendants continue to impermissibly use the Tempur-Pedic Marks in a manner that violates both the Settlement Agreement and state and federal trademark laws. See (Instrument No. 1, at 12).
C.
On February 16, 2012, Plaintiff filed suit in the United States District Court in and for the Southern District of Texas. In the Complaint, Plaintiffs sue the Defendants for (1) trademark infringement under Section 32 of the Lanham Act, (2) unfair competition under Section 43 of the Lanham Act, (3) trademark dilution under Section 43 of the Lanham Act, (4) unfair competition under Texas law, (5) trademark dilution under Texas law, (6) cyber-squatting under Section 32 of the Lanham Act, and (7) breach of contract under Texas law. See (Instrument No. 1).
On May 1, 2012, Defendants filed the instant Motion to Dismiss and Motion for a More Definite Statement. See (Instrument No. 9). In the Motion to Dismiss, Defendants move to dismiss count two— the count regarding unfair competition under the Lanham Act — and count seven— the breach of contract count — pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the basis that the count two and count seven fail to state a claim upon which relief can :be granted. See (Instrument No. 9, at 11). In the Motion for a More Definite Statement, Defendants argue that count two, the count regarding
On May 22, 2012, Plaintiffs filed a Response to Defendants’ Motion to Dismiss and Motion for a More Definite Statement. See (Instrument No. 11). In the Response, Plaintiffs contend that the Motion to Dismiss should be denied because the Complaint sufficiently articulates a claim regarding both count two, the count regarding unfair competition under the Lanham Act, and count seven, the breach of contract count. See (Instrument No. 11, at 10-22). In the Response, the Plaintiffs further argue that the Defendants’ Motion for a More Definite should be denied because the allegations contained in count two and count seven sufficiently describe the basis for Plaintiffs’ claims and provide the Defendants with adequate information to formulate a response to the Complaint. See (Instrument No. 11, at 22-24). On May 31, 2012, the Defendants filed a Reply to the Plaintiffs’ Response wherein they contend, inter alia, that the Plaintiffs have not articulated a claim of false advertising under section 43(a) of the Lanham Act, the Plaintiffs have not stated a claim for breach of contract, and the trademark dilution claim requires re-pleading. See (Instrument No. 15).
II.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint need not contain “detailed factual allegations,” but it must include “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
When a complaint does not meet the pleading requirements of Rule 8, Rule 12(b)(6) authorizes dismissal of a civil action for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must articulate “the plaintiffs grounds for entitlement to relief — including factual allegations that when assumed to be true raise a right to relief above the speculative level.” Cuvillier v. Sullivan,
Under this rubric, dismissal is proper only if the plaintiffs complaint: (1) does not include a cognizable legal theory, Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), or (2) includes a cognizable legal theory but fails to plead enough facts to state a claim to relief that is plausible on its face, Pleasant,
WTien ruling on a 12(b)(6) motion, the Court may consider “the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”
ed facts contained in the complaint are true. Wolcott,
That said, “motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted.” Lormand v. U.S. Unwired, Inc.,
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants move to dismiss count two' — the count regarding unfair competition under the Lanham Act — and count seven — -the breach of contract count — on the basis that the count two and count seven fail to state a claim upon which relief can be granted. See (Instrument No. 9).
A.
1.
Before turning to the sufficiency of Plaintiffs’ complaint, the Court must first determine whether the claims in count two of the complaint are subject to the liberal pleading rules of Rule 8 or whether they are subject to the heightened pleading requirements of Rule 9. In count two, Plaintiffs allege that the Defendants used Plaintiffs’ marks in misleading contexts, thereby misleading consumers into believing that Defendants’ products were somehow associated with Plaintiffs’ products. See (Instrument No. 1, at 16). According to Plaintiffs, this conduct amounted to unfair competition in violation of section 43(a) of the Lanham Act. See (Instrument No. 1, at 16). In the Motion to Dismiss, Defendants argue that the allegations contained in count two essentially accuse Defendants of engaging in fraudulent conduct. Therefore, Defendants contend that the claims advanced in count two should be subject to Rule 9’s heightened pleading requirements for fraud. See (Instrument No. 9, at 6). Under Rule 9 “a plaintiff pleading fraud [must] specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.” Dorsey,
In order to determine the pleading requirement of the claim alleged in count two of the Complaint, the Court must first consider section 43(a) of the Lanham Act, for this is the statute upon which the claim in count two is predicated. Section 43(a) of the Lanham Act provides in relevant part that:
Any person who ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(B); Harold H. Huggins Realty, Inc. v. FNC, Inc.,
On its face, section 43(a) prohibits false or misleading representations; the statute makes no mention of intent to deceive or defraud. Therefore, a plain reading of the statute indicates that section 43(a) was intended to prohibit false or misleading representations regardless of the perpetra
The lower district courts in this circuit that have had occasion to consider the issue have also concluded that the sufficiency of these claims should be determined under Rule 8 rather than Rule 9. See Clearline Techs., Ltd. v. Cooper B-Line,
Outside of this circuit, lower courts are split. Some courts have held that the fraud-like nature of section 43(a) claims should require a plaintiff to specify the nature and content of any alleged misrep
Fraud requires, not just the making of a statement known to be false, but also, inter alia, a specific intent to harm the victim and defraud him of his money or property. That is why Rule 9(b) has been interpreted to require, not just a specification of the alleged misrepresentations, but also a particularization of the facts giving rise to a strong inference that defendant acted with fraudulent intent. By contrast, no fraudulent intent nor even a willful intent to trade on the owner’s reputation or to cause dilution of the famous mark is required under 15 U.S.C. § 1125.
Consequently, a claim of false advertising under § 1125 (and parallel provisions of New York State law) falls outside the ambit of Rule 9(b) and may not be the subject of any heightened pleading requirement.
Villano,
Moreover, as the Fifth Circuit has explained, “[wjhere averments of fraud are made in a claim in which fraud is not an element, an inadequate averment of fraud does not mean that no claim has been stated. The proper route is to disregard averments of fraud not meeting Rule 9(b)’s standard and then ask whether a claim has been stated.” Lone Star Ladies Inv. Club v. Schlotzsky’s Inc.,
2.
Plaintiffs claim that Defendants have wrongfully used Plaintiffs’ marks in misleading contexts to deceive consumers into believing that Defendants’ products were somehow associated with Plaintiffs’ products in violation of section 43(a) of the Lanham Act. See (Instrument No. 1, at 16). Defendants seek to dismiss the claim, arguing that Plaintiffs have not made a claim for false advertising under the Lanham Act. See (Instrument No. 9, at 8).
Any person who, on or in connection with any goods or services, ... uses in commerce any ... false or misleading description ... [or] misrepresentation of fact, which ... in commercial advertising or promotion misrepresents the nature, characteristics, [or] qualities ... of his or her ... goods, services or commercial activities shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(B); FNC, Inc.,
According to Plaintiff, “Tempur-Pedic Marks and variants thereof, as used in connection with premium mattresses, pillows, and other comfort products are distinctive marks that have become exclusively associated with Tempur-Pedic.” (Instrument No. 1, at 16). These “[m]arks and variants thereof have been extensively and continually used, advertised, and promoted by Tempur-Pedic within the United States and worldwide for the past nineteen years.” (Instrument No. 1, at 7).
The Complaint further alleges that “from June 2008 until at least September 2011, without Tempur-Pedic’s knowledge or consent, Angel Beds began using the Tempur-Pedic, The OriginalBed by Tempur-Pedic, The ClassicBed by Tempur-Pedic, the DeluxeBed by Tempur-Pedic, the RhapsodyBed by Tempur-Pedic, the PrimaBed by Tempur-Pedic, the CelebrityBed by Tempur-Pedic, and the Grand-Bed by TempurPedic trademarks (and others) in a link block on its website.” (Instrument No. 1, at 10). Moreover, “in 2008, Defendants registered the domain name www.tempurpediccomparison.com.” (Instrument No. 1, at 10). Defendants use “this confusingly similar domain name to place misleading and confusing ads that re-direct traffic to www.angelbeds.com.” (Instrument No. 1, at 10).
According to Plaintiffs, Defendants’ advertising used the Tempur-Pedic marks “in order to drive Internet traffic to its website by manipulating search engines, causing initial consumer confusion and/or actual consumer confusion.” (Instrument No. 1, at 10). Moreover, Plaintiffs contend that Defendants’ use of Tempur-Pedic’s marks in their web advertising “cause initial consumer confusion and/or actual consumer confusion regarding the source, sponsorship, approval and/or authorization of Defendants’ goods, services, and business operations by Tempur-Pedic.” Id. Plaintiffs contend that Defendants trade practices are “likely to confuse customers as to (1) the nature of the relationship between Defendants and Tempur-Pedic, (2) Tempur-Pedic’s approval of Defendants’ business operations conducted under the name and mark TEMPUR-PEDIC, and (3) the nature and quality of the products sold by Defendants.” (Instrument No. 1, at 12). Plaintiffs allege that these practices have the capacity to deceive because “customers and prospective customers of Defendants’ products are deceptively led to believe that Defendants’ products are affiliated, connected, associated, sponsored or otherwise approved by Tempur-Pedic, when in fact Defendants have no connection or affiliation whatsoever with Tempur-Pedic in regard to such products.” (Instrument No. 1, at 16).
On these facts, the Court finds that Plaintiffs have unquestionably asserted a plausible claim for violation of section 43(a) of the Lanham Act. Plaintiffs have alleged that Defendants made false or misleading statements about products the Plaintiffs have placed in the stream of interstate commerce, these statements had the capacity to deceive a substantial segment of potential customers, the deception is likely to influence the potential customer’s purchasing decision, and Plaintiffs have been injured by Defendants’ conduct. See Pizza Hut,
B.
In count seven of the Complaint, Plaintiffs allege that Defendants breached the terms of the parties’ 2006 Settlement Agreement, wherein Plaintiffs agreed to dismiss their patent infringement suit against Defendants in exchange for Defendants’ promise to refrain from using Plaintiffs’ trademarks in connection with the promotion, advertising, and selling of Angel Beds’ products. (Instrument No. 1, at 23-24) (citing Instrument No. 1-3). Defendants contend that Plaintiffs’ breach of contract claim should be dismissed because the Plaintiffs “do not plead any specific factual allegations that show how Angel Beds is alleged to have breached the Settlement Agreement.” (Instrument No. 9, at 10).
The parties both contend that the breach of contract claim is governed by Texas law. See (Instrument No. 9, at 10; Instrument No. 11, at 20). In Texas, “the essential elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach.” Mullins v. TestAmerica, Inc.,
In the Complaint, Plaintiffs allege that: (1) “[i]n 2006, Tempur-Pedic and Angel Beds entered into a written settlement agreement,” see (Instrument No. 1, at 9, 23); (2) the Settlement Agreement, which is attached to the Complaint,
When these facts and all reasonable inferences there from are viewed in the light most favorable to Plaintiffs, the Court concludes that Plaintiffs have stated a plausible claim for breach of contract. Plaintiffs’ complaint shows the existence of a contract, it further demonstrates that Plaintiffs tendered the performance required by the contract, the Defendants breached the terms of the contract, and Plaintiffs were injured as a result of Defendants’ breach. On these facts, the Court finds that Plaintiffs have sufficiently alleged that Defendants are liable for breach of contract. As such, the Defendants’ motion to dismiss the breach of contract is DENIED.
TV.
In count three, Plaintiffs allege a claim for trademark dilution under § 43(c) of the Lanham Act. In count five, Plaintiffs allege a claim trademark dilution under Texas state law. See (Instrument No. 1, at 17-18; 20-21). Defendants argue that it is “unclear which of Plaintiffs’ marks are encompassed by this claim” and therefore Angel Beds moves for a more definite statement under Rule 12(e). (Instrument No. 9, at 11). Defendants also contend that Plaintiffs’ claims of unfair competition in violation of section 43(a) of the Lanham Act are ambiguous and therefore Plaintiffs must supply them with a more definite statement. See (Instrument No. 9, at 12.)
Rule 12(e) of the Federal Rules of Civil Procedure provides that “[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambigu
Rule 12(e) however must be read in light of Rule 8. The pleading requirements of Rule 8 do not require a claimant to set out in detail the facts upon which he bases his claim. Iqbal,
Given that Rule 8 only requires a short and plain statement of claims, “a motion for more definite statement is generally disfavored and is used to provide a remedy only for an unintelligible pleading rather than a correction for lack of detail.” Pension Advisory Group, Ltd. v. Country Life Ins. Co.,
Although a party may employ Rule 12(e) to enforce the minimum requirement of Rule 8’s notice pleading, when defendants are complaining of matters that can be clarified and developed during discovery, rather than matters that impede their ability to form a responsive pleading, the motion for a.more definite statement should not be granted. Arista Records LLC v. Greubel,
In this case, Defendant moves for a more definite statement because the Plaintiffs have not identified exactly which marks forms the basis for Tempur-Pedic’s claim of trademark dilution. In the Complaint, the Plaintiffs detail the fifteen registered trademarks and the seven unregistered common law trademarks they have extensively used in connection with their domestic sales. See (Instrument No. 1, at 5-7). The complaint goes on to describe the method of Defendants’ dilutive conduct with respect to the marks Plaintiffs use in connection with its domestic business. See (Instrument No. 1, at 17-18, 20-21). Spe
Defendants also move for a more definite statement with respect to count two of the Complaint. In count two, Plaintiffs allege violations of section 43(a) of the Lanham Act. See (Instrument No. 1, at 16-17). Defendants, however, contend that “the allegations of unfair competition in Count Two of the Complaint are at best ambiguous as to whether Tempur-Pedic is asserting complaints for infringement of trade names or unregistered trademarks and if so which ones.” (Instrument No. 9, at 12). The Court begins, as always, with reference to the statute that gives rise to Plaintiffs’ claims.
Section 43(a) of the Lanham Act provides that:
Any person who, on or in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ...
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1). The Defendants correctly note that section 43(a) of the Lanham Act prohibits false advertising and also protects trade names and unregistered trademarks. (Instrument No. 9, at 12) (citing Sugar Busters, LLC v. Brennan, 177 F.Sd 258, 267 (5th Cir.1999)). The false advertising claims provided in paragraph (b) of section 43(a) have already been discussed; the Court concluded that Plaintiffs sufficiently articulated a claim for relief under the false advertising provision of section 43(a). See Section III. A., supra.
With respect to the trademark confusion claims provided for in paragraph (a) of section 43(a), the Court finds that Plaintiffs have adequately pled a claim for
First, the complaint details the fifteen registered trademarks and the seven unregistered common law trademarks Plaintiffs have extensively used in connection with their domestic sales. See (Instrument No. 1, at 5-7). Then, the complaint alleges that from “2008 until at least September 2011, Defendants used Tempur-Pedic’s trademarks in a link block on its website in order to drive Internet traffic to its website by manipulating search engines, causing initial consumer confusion and/or actual consumer confusion.” (Instrument No. 1, at 10). Plaintiffs also claim that “Defendants registered the domain name www.tempurpediccomparison. com in bad faith in order to cause initial consumer confusion and/or actual consumer confusion regarding the source, sponsorship, approval, and/or authorization of Defendants’ goods or services, and business operations by Tempur-Pedic.” (Instrument No. 1, at 10). Plaintiffs further accuse Defendants of mimicking Tempur-Pedic’s product names causing the “public to be confused, mistaken, and deceived into wrongfully attributing source, sponsorship, approval and/or authorization of Defendants’ goods, services, and business operations by Tempur-Pedic.” (Instrument No. 1, at 11). Plaintiffs also allege that “Defendants used and continue to use Tempur-Pedic’s trademarks to attract customers improperly to their multiple websites.” (Instrument No. 1, at 12). According to Plaintiffs, this use of Tempur-Pedic’s trademarks on Defendants’ websites will cause the “public to be confused, mistaken, and deceived into wrongfully attributing source, sponsorship, approval and/or authorization of Defendants’ goods, services, and business operations by Tempur-Pedic.” (Instrument No. 1, at 12, 14).
On review, the Court finds that Plaintiffs have sufficiently demarcated the parameters of their trademark confusion claim. Plaintiffs have articulated the trademarks at issue and they further allege that Defendants have engaged in conduct which has caused a likelihood of confusion as to the origin of Defendants’ goods. Plaintiffs specify in great detail the conduct which they claim violates paragraph (a) of section 43(a) of the Lanham Act. Thus, the complaint provides Defendants with adequate notice of Plaintiffs’ claims and is not so vague or ambiguous that Defendants cannot reasonably formulate a response. See Fed.R.Civ.P. 12(e). Accordingly, Defendants’ Motion for a More Definite Statement with respect to Plaintiffs’ section 43(a) claims is DENIED.
V.
For the foregoing reasons, Defendants’ Motion to Dismiss (Instrument No. 9) is DENIED and the Defendants’ Motion for a More Definite Statement (Instrument No. 9) is DENIED.
IT IS SO ORDERED.
The Clerk shall enter this Order and provide a copy to all parties.
Notes
. The parties involved in this suit are numerous. Plaintiffs include Tempur-Pedic International, Inc., Tempur-Pedic Management, Inc., Tempur-Pedic North America, LLC, and Dan-Foam APS. Defendants include Angel Beds, LLC, the Merrick Group, LLC, The Merrick Group Capital 1, LTD, and Philip A. Krim. For the sake of brevity, the plaintiffs will be referred to as either "Plaintiffs'' or simply “Tempur-Pedic." Similarly, the defendants will be refereed to as either “Defendants” or simply "Angel Beds.".
. Matter of which a court may take judicial notice includes, for example, matters of pub-lie record. See Fin. Acquisition Partners LP v. Blackwell,
. Although section 43(a) covers more than just false advertising, Defendants’ motion to dismiss only seeks to dismiss the section 43(a) claim for false advertising. See (Instrument No. 9, at 8); see also (Instrument No. 15, at 2-5) (Defendants' Reply wherein they specifically argue Plaintiffs have not demonstrated a claim for false advertising). Thus, the Court only considers whether Plaintiffs have stated a claim for false advertising.
. When reviewing a motion to dismiss, the Court may consider any attachments to the complaint. Tellabs, Inc. v. Makor Issues & Rights, Ltd.,