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Lovepop, Inc. v. Paperpopcards, Inc.

United States District Court, D. Massachusetts

February 22, 2018

LOVEPOP, INC., Plaintiff,
v.
PAPERPOPCARDS, INC., Defendant.

          MEMORANDUM AND ORDER

          PATTI B. SARIS CHIEF UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         This case concerns greeting cards that unfold to reveal intricate three-dimensional designs derived from a paper-cutting art form called kirigami. Plaintiff LovePop, Inc. (“LovePop”), alleges, among other things, that Defendant PaperPopCards, Inc. (“PaperPop”), has infringed its copyrights covering an array of LovePop greeting cards, as well as videos depicting how the three-dimensional designs pop up when the cards are opened.

         PaperPop moved to dismiss the copyright infringement claim, arguing that it does not make the cut under Fed.R.Civ.P. 12(b)(6). At a hearing, the Court partially denied the motion as to three of the allegedly infringing cards. After further consideration of the parties' submissions, the Court ALLOWS IN PART and DENIES IN PART the remainder of PaperPop's motion to dismiss (Docket No. 12).

         FACTUAL BACKGROUND

         The pertinent facts unfold from LovePop's Amended Complaint (Docket No. 28) (“AC”). [1]

         LovePop, a Delaware corporation with its principal place of business in Boston, Massachusetts, produces three-dimensional pop-up greeting cards. AC ¶¶ 1, 7. It sells the cards primarily through its website, but also at specialty card stores and kiosks in Boston and New York. AC ¶¶ 1, 13. LovePop offers more than 200 pop-up card designs “for virtually every occasion, season and sentiment.” AC ¶ 13. The pop-up component inside each card derives from a paper-cutting art form called kirigami, with an assist from advanced design software. AC ¶ 12.

         Nine LovePop card designs are relevant to this case: (1) “Rose Bouquet, ” (2) “Money Tree, ” (3) “French Flower Cart, ” (4) “Nativity, ” (5) “Santa Sleigh, ” (6) “Hanukkah Menorah, ” (7) “Willow Tree, ” (8) “Balloon Bouquet, ” and (9) “Willow Love LovePop filed its original complaint in June 2017. In September 2017, after argument on the motion to dismiss, LovePop filed an Amended Complaint that added allegations pertaining to one additional LovePop card and one additional PaperPop card. Compare Docket No. 1, with Docket No. 28. Technically, PaperPop still has only moved to dismiss the original complaint and not the Amended Complaint. For the sake of efficiency, and because the issues and arguments largely overlap, the Court will treat the motion as if it were directed toward the Amended Complaint. Scene.” AC ¶ 15. Each design is registered as visual art with the U.S. Copyright Office. AC ¶ 15.

         In addition, LovePop has created original videos depicting how six of the above designs pop up when the cards are opened. AC ¶¶ 17-18. These videos, posted on LovePop's website, are also registered with the U.S. Copyright Office. AC ¶¶ 17-18.

         PaperPop, a New York corporation with its principal place of business in New York, also sells three-dimensional pop-up greeting cards. AC ¶¶ 8, 24. According to the Amended Complaint, PaperPop “slavishly copied” each of the nine LovePop designs mentioned above. AC ¶¶ 2, 30. Similarly, six of these allegedly infringing designs appear in videos posted on PaperPop's website, illustrating how the pop-up displays work. AC ¶¶ 28-29.

         As a result, LovePop accuses PaperPop of, among other things, infringing its copyrights in the nine card designs and six videos just described. LovePop's Amended Complaint contains four counts: Count I, copyright infringement, 17 U.S.C. § 501; Count II, trademark infringement, 15 U.S.C. § 1114(1); Count III, trademark infringement, unfair competition, and false designation of origin, 15 U.S.C. 1125(a); and Count IV, common law trademark infringement and unfair competition. AC ¶¶ 59-86. In July 2017, PaperPop moved to dismiss Count I.

         LEGAL STANDARDS

         I. Motion to Dismiss

         In reviewing a Rule 12(b)(6) motion to dismiss, a court must “[s]et[] aside any statements [in the complaint] that are merely conclusory” and “construe all factual allegations in the light most favorable to the non-moving party to determine if there exists a plausible claim upon which relief may be granted.” Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 353 (1st Cir. 2013). “[C]ourts tasked with this feat usually consider only the complaint, documents attached to it, and documents expressly incorporated into it.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71-72 (1st Cir. 2014). Here, the parties agree that the Court may properly consider exemplars of the cards in question, as well as the relevant videos.

         II. Copyrigh ...


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