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Cave Man Kitchens Inc. v. Caveman Foods, LLC

United States District Court, W.D. Washington, Seattle

August 19, 2019



          The Honorable Richard A. Jones, United States District Judge.

         The Honorable Richard A. Jones This matter comes before the Court on Defendant's Motion to Dismiss or Alternatively Transfer Venue (Dkt. # 13). Having considered the submissions of the parties, the relevant portions of the record, and the applicable law, the Court finds that oral argument is unnecessary. For the reasons stated below, Defendant's Motion (Dkt. # 13) is DENIED.

         I. BACKGROUND

         The following is taken from Cave Man Kitchens' Complaint, which is assumed to be true for the purposes of this motion to dismiss, declarations provided by both parties, as well as other documents that have been judicially noticed as noted below. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); see also McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (“Moreover, when considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.”).

         Cave Man Kitchens, Inc. (“Plaintiff” or “Cave Man Kitchens”) is a Washington-based corporation that provides restaurant, food preparation, and catering services. Dkt. # 1 at 2. Since 1971, Plaintiff's “predecessor in interest” Cave Man Kitchens, Inc. (the “former Cave Man Kitchens”) has used the terms CAVE MAN and CAVEMAN for its restaurant and catering services in Washington. On March 1, 2011, the former Cave Man Kitchens filed for bankruptcy (Dkt. #17, Ex. A.) and Plaintiff subsequently incorporated under the same name, Cave Man Kitchens, Inc.. Dkt. # 1 at ¶ 7. Plaintiff also “became the owner by assignment of the Trademarks, Service Marks, Trade Dress and/or domain names” and goodwill of the former Cave Man Kitchens. Id. Since then, Plaintiff has continued to operate from “substantially the same location in Kent, Washington” using the marks CAVEMAN, CAVEMAN KITCHEN, and CAVE MAN KITCHENS in connection with its products and services. Id. Plaintiff is currently the owner of the CAVE MAN KITCHENS mark (Registration No. 3222887), effective March 27, 2011, and has pending applications with the Unites States Patent and Trademark Office (“USPTO”) for the CAVEMAN KITCHEN (Application No. 86955705) and CAVEMAN (Application No. 86966805) marks. Dkt. # 1 at ¶¶ 7-9.

         Defendant Caveman Foods (“Defendant” or “Caveman Foods”) is a California-based company that manufactures and sells a “variety of ready-to-eat food products…” Dkt. # 1 at ¶ 4. According to Plaintiff, Caveman Foods knowingly adopted the CAVEMAN mark “as the central element of its own name and mark for use on goods and services substantially similar to those of Cave Man Kitchens” and distributed those goods and services through “substantially the same channels of trade and to the same types of consumers as those of Cave Man Kitchens.” Id. at ¶ 17. Caveman Foods, for its part, also maintains trademark registrations for CAVEMAN FOODS (Registration No. 4863604), CAVEMAN JERKY (Registration No. 4841590), and CAVEMAN FOODS (Registration No. 4565451) and has active applications for other CAVEMAN marks pending before the USPTO. Dkt. # 2-2, Ex. C; Dkt. # 2-2, Ex. D.

         The procedural history of this dispute is complicated. On May 8, 2017, Cave Man Kitchens filed a petition to cancel Caveman Foods' trademark registrations for the CAVEMAN FOODS and CAVEMAN JERKY marks. Dkt. # 1 at ¶ 13. Cave Man Kitchens also filed opposition to Caveman Foods' application for the other CAVE MAN marks. Id. at ¶ 14. Caveman Foods responded by filing a petition to cancel Cave Man Kitchens' registration for the CAVE MAN KITCHENS mark and opposition to Cave Man Kitchens' pending applications for the CAVEMAN KITCHEN and CAVEMAN marks. Id. at ¶¶ 15-16.

         On February 22, 2018, Cave Man Kitchens brought suit against Caveman Foods in the Western District of Washington, alleging trademark infringement (Cave Man Kitchens, Inc.v. Caveman Foods, LLC, No. 2:18-cv-00273-TSZ (W.D. Wa.)). Dkt. # 17, Ex. J. During the discovery process, Caveman Foods realized that Cave Man Kitchens did not actually own the CAVE MAN KITCHENS registration that its complaint was based on - the mark was actually owned by the former Cave Man Kitchens, Inc. (now dissolved). Dkt. # 17, Ex. K. Caveman Foods filed a motion to dismiss for lack of standing, lack of personal jurisdiction, or in the alternative a motion to transfer venue. Id. On May 30, 2018, while Caveman Foods' motion was still pending, Cave Man Kitchens obtained a nunc pro tunc assignment of the CAVE MAN KITCHENS mark from its predecessor in interest (the former Cave Man Kitchens Inc.). Dkt. # 17, Ex. L. The assignment indicates that it is effective June 6, 2011. Id.

         Although the nunc pro tunc assignment applied retroactively and purportedly corrected the standing defect, on August 28, 2018, the Honorable Thomas S. Zilly dismissed Cave Man Kitchens' complaint noting that at the time Cave Man Kitchens initially filed the complaint, it did not own the rights to the CAVE MAN KITCHENS registration. Dkt. # 17, Ex. M. That same day, at 5:28 PM, Caveman Foods sued Cave Man Kitchens in the Northern District of California (Caveman Foods, LLC v. Cave Man Kitchens, Inc., No 4:18-cv-05289 (N.D. Cal.)). Dkt. # 17, Ex. N. Shortly after Caveman Foods filed its complaint in the Northern District of California, Cave Man Kitchens re-filed its complaint in this Court. Dkt. # 1.

         Caveman Foods now moves to dismiss Cave Man Kitchens' complaint arguing that under the first-to-file rule, Caveman Foods' complaint in the Northern District of California was filed first and this action should be stayed or dismissed in favor of the California action. Dkt. # 13 at 3. Alternatively, Caveman Foods argues that Cave Man Kitchens' complaint should be dismissed for lack of personal jurisdiction or transferred to the Northern District of California on forum non conveniens grounds. Id.


         Defendant asks the Court to take judicial notice of 16 documents in support of its motion to dismiss. Dkt. # 17; Dkt. # 28. The documents fall into three categories: (1) dockets and filings from previous court proceedings, including former Cave Man Kitchens' bankruptcy court filings, (2) U.S. Patent and Trademark Office records for Caveman Foods and Cave Man Kitchens, and (3) public records filed with the Secretaries of State for California and Washington (collectively the “Exhibits”). On a motion to dismiss, the Court typically considers only the contents of the complaint. However, the Court is permitted to take judicial notice of facts that are “not subject to reasonable dispute because [they] ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). It is well established that the Court may take judicial notice of court filings, including bankruptcy court filings. See Otter v. Northland Grp., Inc., No. 12-2034-RSM, 2013 WL 2243874, at *1 (W.D. Wash. May 21, 2013) (granting request for judicial notice of documents filed in bankruptcy court). The Court may also take judicial notice of “authentic documents recorded with a governmental agency.” Gelinas v. U.S. Bank, NA, No. 16-1468-JLR, 2017 WL 553277, at *3 (W.D. Wash. Feb. 10, 2017). This includes public records filed with the U.S. Patent and Trademark Office or the Secretary of State. See Oroamerica Inc. v. D & W Jewelry Co., 10 Fed.Appx. 516, 517, n.4 (9th Cir. 2001) (granting request for judicial notice of public records filed with the U.S. Patent and Trademark Office); Grassmueck v. Barnett, 281 F.Supp.2d 1227, 1232 (W.D. Wash. 2003) (granting request for judicial notice of public records kept by the Secretary of State). Plaintiff does not challenge Defendant's request for judicial notice. Accordingly, the Court will take judicial notice of the Exhibits as they are all court filings or matters of public record from government entities.


         A. First ...

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