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Ahmed v. Hosting.Com

United States District Court, D. Massachusetts

June 27, 2014

NAEEM AHMED, Plaintiff,
v.
HOSTING.COM and JOHN DOE, Defendants. NAEEM AHMED, Plaintiff,
v.
FACEBOOK, INC., JOHN DOE 1, JOHN DOE 2, AND JOHN DOE 3, Defendants.

MEMORANDUM AND ORDER

WILLIAM G. YOUNG, District Judge.

I. INTRODUCTION

Naeem Ahmed ("Ahmed") brings two separate, but similar, suits against Hosting.com ("Hosting"), Facebook, Inc. ("Facebook"), and four unnamed John Doe defendants (collectively, "John Does") (with Hosting and Facebook, the "Defendants") for trademark infringement. Ahmed alleges that Hosting and Facebook are responsible for the infringing activities of the John Does, including the use of the trademarks "The News International, "[1] "the Jang, " and "Geo" (collectively, "the Marks"), over which Ahmed allegedly has some proprietary interest. Ahmed further contends that the John Does' infringing use is causing severe losses and irreparable damage to his business.

Hosting and Facebook have both moved to dismiss Ahmed's complaints. They contend that this Court lacks subject matter jurisdiction and that Ahmed has failed sufficiently to allege a trademark infringement claim against any defendant.

A. Procedural Posture

1. Hosting[2]

Ahmed filed a complaint with this Court on December 9, 2013. Compl. ("The Hosting Compl."), ECF No. 1. On January 29, 2014, Hosting moved to dismiss Ahmed's complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1), 12(b)(2), and 12(b)(6) for lack of standing, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted. Def.'s Rule 12(b)(1), 12(b)(2) & 12(b)(6) Mot. Dismiss Pl.'s Compl., ECF No. 15. On the same day, Hosting filed a memorandum and a declaration of its counsel in support of its motion. Mem. Supp. Def.'s Rule 12(b)(1), 12(b)(2) & 12(b)(6) Mot. Dismiss Pl.'s Compl. ("Hosting's Mem."), ECF No. 16.; Decl. Leah W. Feinman Supp. Def.'s Rule 12(b)(1), 12(b)(2) & 12(b)(6) Mot. Dismiss Pl.'s Compl. ("Decl. Feinman"), ECF No. 17.

On February 4, 2014, Ahmed opposed Hosting's motion. Mem. Law Opp'n Def. No. 1's Mot. Dismiss ("Opp'n to Hosting"), ECF No. 20. Hosting replied to Ahmed's opposition on February 24, 2014. Def.'s Reply Br. Supp. Rule 12(b)(1), 12(b)(2) & 12(b)(6) Mot. Dismiss Pl.'s Compl., ECF No. 23. On March 21, 2014, Hosting filed a request for judicial notice of certain United States Patent and Trademark Office ("USPTO") materials, Req. Judicial Notice Supp. Mot. Dismiss, ECF No. 26, to which Ahmed responded on April 3, 2014, Resp. Hosting.com's Req. Judicial Notice Supp. Mot. Dismiss, ECF No. 27.

2. Facebook[3]

Ahmed filed a complaint with this Court on January 7, 2014. Compl. ("The Facebook Compl."), ECF No. 1. On February 27, 2014, Facebook filed a motion to dismiss Ahmed's complaint pursuant to Rules 12(b)(1) and 12(b)(6) or, alternatively, to have Ahmed file a more definite statement under Rule 12(e). Def. Facebook, Inc.'s Mot. Dismiss Compl. or, Alternative, More Definite Statement, ECF No. 13. On the same day, Facebook filed a memorandum and a declaration of its counsel in support of its motion. Mem. Supp. Facebook., Inc.'s Mot. Dismiss Compl. or, Alternative, More Definite Statement ("Facebook's Mem."), ECF No. 14; Decl. Patrick J. O'Toole, Jr. Supp. Facebook, Inc.'s Mot. Dismiss Compl. or, Alternative, More Definite Statement ("Decl. O'Toole"), ECF No. 15. On March 6, 2014, Ahmed opposed Facebook's motion. Mem. Law Opp'n Def. No. 1's Mot. Dismiss or More Definite Statement ("Opp'n to Facebook"), ECF No. 18. On March 18, 2014, Facebook replied to the opposition. Reply Mem. Law Further Supp. Facebook, Inc.'s Mot. Dismiss Compl. or, Alternative, More Definite Statement, ECF No. 21. On March 25, 2014, Facebook filed a request for judicial notice of two USPTO Office Actions, Req. Judicial Notice Supp. Facebook, Inc.'s Mot. Dismiss or, Alternative, More Definite Statement ("Req. Judicial Notice"), ECF No. 22, to which Ahmed responded on April 3, 2014, Resp. Facebook's Req. Judicial Notice Supp. Mot. Dismiss or, Alternative, More Definite Statement, ECF No. 23.

B. Facts Alleged

The underlying facts alleged in both cases are strikingly similar, revolving around Ahmed's rights to the purported Marks, and the Defendants' alleged infringement thereof. Hosting is a "cloud computing company that builds and operates high-performance websites for companies." Hosting's Mem. 3. Among the sites Hosting administers and operates is the webpage www.thenews.com.pk, which it operates for Jang, "the largest media company in Pakistan." Id . Jang owns a Pakistani trademark for one of the Marks, which it registered in 1995 and has used on its site since at least January 1998. Id . Jang's contact information is displayed on its webpage. Id. at 4.

Facebook is a social networking company that allows users to communicate by creating Facebook "[p]ages." Facebook's Mem. 5. Several of those Facebook pages, run by three John Does, allegedly use the Marks in which Ahmed claims a proprietary interest. The Facebook Compl. ¶ 1.

Ahmed alleges[4] that the webpage www.thenews.com.pk, administered by Hosting, infringes on the trademark "The News International, " which he allegedly owns or licenses. Decl. Feinman, Ex. 8, Cease & Desist Notice (Trademark Infringement) ("Cease & Desist Notice") 1, ECF No. 17-8. Likewise, Ahmed claims the various Facebook pages infringe on all the Marks, which he allegedly owns or exclusively licenses. The Facebook Compl. ¶ 1. On December 1, 2013, Ahmed, through his attorneys, sent Hosting a cease and desist notice under section 512 of the Digital Millennium Copyright Act (the "DMCA") asking Hosting to take down the allegedly infringing website. Cease & Desist Notice 1-3. Hosting conducted an investigation of the allegations and responded that the notice was deficient because the DMCA covers only copyright ...


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