United States District Court, D. Colorado
PHILIP A. BRIMMER, District Judge
This matter is before the Court on the partial motion to dismiss filed by defendant Woodman Labs, Inc., d/b/a GoPro ("GoPro"). GoPro seeks dismissal of plaintiff Dinkum Systems, Inc.'s ("Dinkum") second, third, and fourth claims for relief. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
Dinkum is a Boulder, Colorado-based company that manufactures accessories for cameras. At issue are two of Dinkum's products, ActionPod and ActionPod PRO (the "ActionPod products"), which allow photographers to mount cameras to a wide range of surfaces and equipment. According to Dinkum, sometime in 2012, Dinkum and GoPro entered into a promotional relationship, wherein GoPro invited Dinkum to display the ActionPod products in GoPro's booths at various industry events and trade shows, thus giving GoPro substantial familiarity with the ActionPod products. Docket No. 1 at 4, 5, ¶¶ 26, 29. In late 2013, GoPro released a similar product, the Jaws Flex Clamp. Compare Docket No. 1-1 with Docket No. 1-2.
Dinkum alleges that GoPro intentionally copied the ActionPod products, and brings a federal claim for patent infringement, as well as state law claims for common law unfair competition, violation of the Colorado Consumer Protection Act ("CCPA"), and unjust enrichment. GoPro moves to dismiss all three of Dinkum's state law claims.
II. STANDARD OF REVIEW
The Court's function on a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is sufficient to plausibly state a claim. Fed.R.Civ.P. 12(b)(6); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In doing so, the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks and citation omitted). At the same time, however, a court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).
Generally, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (omission marks, internal quotation marks, and citation omitted). The "plausibility" standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.2008). However, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson, 534 F.3d at 1286 (quotation marks and citation omitted).
A. Unfair Competition
Dinkum brings a claim for unfair competition under Colorado law. The Supreme Court has held that states "may protect businesses in the use of their trademarks, labels, or distinctive dress in the packaging of goods so as to prevent others, by imitating such markings, from misleading purchasers as to the source of the goods." Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 232 (1964). Under Colorado law, "the tort of unfair competition requires, first, that the defendant has copied the plaintiff's products or services or misappropriated plaintiff's name or operations in some regard, and second, that this conduct is likely to deceive or confuse the public because of the difficulties in distinguishing between the plaintiff's and defendant's products and services." NetQuote, Inc. v. Byrd, 504 F.Supp.2d 1126, 1131 (D. Colo. 2007). Generally, unfair competition has been limited to protection against "copying of nonfunctional aspects of consumer products which have acquired secondary meaning such that they operate as a designation of source." HealthONE of Denver, Inc. v. UnitedHealth Group Inc., 805 F.Supp.2d 1115, 1123 (D. Colo. 2011) (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 158 (1989)). The tort of unfair competition cannot protect functional elements of a product, as "[t]here is only one source of exclusive rights in functional or utilitarian features-utility patent law." McCarthy on Trademarks and Unfair Competition § 7:64 (4th ed.) (citing Qualitex Co v. Jacobson Products Co., Inc., 514 U.S. 159, 164 (1995)); see also Global Manufacture Grp., LLC v. Gadget Universe.Com, 417 F.Supp.2d 1161, 1167 (S.D. Cal. 2006) ("[t]he physical details and design of a product may be protected under the trademark laws only if they are nonfunctional") (quotation and citation omitted); Aurora World, Inc. v. Ty Inc., 719 F.Supp.2d 1115, 1146 (C.D. Cal. 2009) (nonfunctional elements of a product are not protected under trademark law because "there exists a fundamental right to compete through imitation of a competitor's product, which right can only be temporarily denied by the patent or copyright laws") (quoting Clamp Mfg. Co., Inc. v. Enco Mfg. Co., Inc., 870 F.2d 512, 516 (9th Cir. 1989).
GoPro argues that Dinkum has failed to identify with specificity any nonfunctional elements of the ActionPod products that qualify for protection under plaintiff's state law claims. Specifically, GoPro states that Dinkum is unable to protect the functional aspects of the ActionPod products because patent law preempts state law protection for a product's functional aspects. Docket No. 23 at 8 ( citing Qualitex, 514 U.S. at 164). In response, Dinkum does not dispute that patent law preempts state law protection for functional aspects of its products. Its state law claims recognize this fact since the premise of each is that GoPro copied the "nonfunctional aspects" of the ActionPod products. See Docket No. 1 at 7-8, ¶¶ 44 ("GoPro engaged in the tort of unfair competition under Colorado law when it copied... nonfunctional aspects of Dinkum's ActionPod products, which have acquired secondary meaning such that they operate as a designation of source"); 50 ("GoPro copied... nonfunctional aspects such as color, look and feel, which have acquired secondary meaning such that they operate as a designation of source"); 58 ("By copying the ActionPod products..."). However, rather than respond to GoPro's argument that Dinkum's state law claims are defective for failure to identify specifically what nonfunctional aspects of the products GoPro copied, Dinkum argues that it is not asserting trade dress claims under the Lanham Act, which misses the point.
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are inadequate to state a claim for which relief can be granted. Iqbal, 556 U.S. at 678-79. The Court agrees with GoPro that Dinkum has not alleged sufficient facts to support its claim that GoPro copied any protectable, nonfunctional elements of the ActionPod products. The complaint alleges only that GoPro copied the products' "color, look and feel", which Dinkum asserts "have acquired secondary meaning such that they operate as a designation of source." Docket No. 1 at 5, ¶ 35; see also id. at 7, ¶ 50 ("GoPro copied... nonfunctional aspects such as color, look and feel, which have acquired secondary meaning such that they operate as a designation of source").
Although color alone can gain secondary meaning, Qualitex, 514 U.S. at 171-72, Dinkum fails to allege what color has gained secondary meaning. Moreover, Dinkum alleges no "facts which would support a finding that in the minds of the public, the primary significance" of the ActionPod products' color "is to identify the source of the product rather than the product itself." Urban Group Exercise Consultants, Ltd. v. Dick's Sporting Goods, Inc., 2012 WL 3240442 at *7 (S.D.N.Y. Aug. 7, 2012) (dismissing trade dress claim for failure to allege that nonfunctional aspects of product had acquired secondary meaning) (citation and quotation omitted). As for the products' "look and feel, " the Court finds that these concepts are too vague for the Court to assess whether Dinkum's unfair competition claim incorporates functional elements of the ActionPod products. See ID7D Co., Ltd. v. Sears Holding Corp., 2012 WL 1247329 at *7 (D. Conn. Apr. 13, 2012) (dismissing trade dress claim where plaintiff "failed to plead in its complaint that any of the specific elements" of its product "are non-functional"); see also Glassybaby, LLC v. Provide Gifts, Inc., 2011 WL 2218583 at *2 (W.D. Wash. June 6, 2011) ("Plaintiff must plead with at least some detail what the purported design is and how it is nonfunctional"). Here, Dinkum alleges no facts that describe nonfunctional details of the ActionPod products' "look and feel." In fact, the only details of the ...