Outdoor Pro Shop, Inc. v. Monster Energy Company
Opinion
Trial Court Opinion
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 6 OUTDOOR PRO SHOP, INC., Case No. 20-cv-05999-BLF
Plaintiff,
ORDER GRANTING MOTION TO
v. DISMISS WITH LEAVE TO AMEND
MONSTER ENERGY COMPANY, [Re: ECF 9] Defendant.
12 In this trademark dispute, Defendant Monster Energy Company (“Monster”) has filed a motion to dismiss on the bases that Plaintiff Outdoor Pro Shop, Inc. has failed to plead the date it first used its unregistered marks in commerce and failed to plead that its alleged trademarks are inherently distinctive or have become distinctive by acquiring secondary meaning. See Mot., ECF 9. Outdoor Pro Shop opposes this motion, arguing that these facts are not required to be pled. See Opp’n, ECF 12. The Court agrees with Monster and GRANTS the motion with leave to amend. Outdoor Pro Shop must plead both the dates of first use for its marks and the specific type of distinctiveness alleged. See FreecycleSunnyvale v. The…