United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
pertinent facts unfold from LovePop's Amended Complaint
(Docket No. 28) (“AC”). 
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
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.
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.
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 ¶¶
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.
Motion to Dismiss
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