DowElanco

ORDER GRANTING MOTION TO DISMISS

This matter comes before the Court on defendant DowElanco’s motion to dismiss or strike plaintiffs’ first amended complaint. The Court grants the motion to dismiss.

I. Background

Defendant DowElanco manufactures pesticides, including a pesticide called Vi-kane, which is used against termites. The EPA regulates Vikane, which carries a label that must be EPA-approved. The Vikane label contains, among other things, instructions on the proper use of the pesticide. It is a violation of federal law to use Vikane in a manner inconsistent with its label.

Vikane is used to fumigate structures, including areas that typically contain food or medicine. To protect food and medicine from the pesticide, these items must either be removed from the area or placed in special protective bags. This is indicated on the Vikane label.

DowElanco owns the trademark for one such protective bag, Nylofume. DowElan-co has licensed the use of this mark to M & Q Plastics Products, which manufactures and sells the bags. DowElanco claims to receive no royalties or revenues from the license of the Nylofume mark.

The plaintiffs (collectively “Kimmel”) also manufacture a bag…