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United Oil Heat, Inc. v. M.J. Meehan Excavating, Inc.

Appeals Court of Massachusetts, Bristol

July 12, 2019

UNITED OIL HEAT, INC.[1]
v.
M.J. MEEHAN EXCAVATING, INC., & another.[2]

          Heard: October 10, 2018.

         Civil action commenced in the Superior Court Department on August 2, 2017.

         A motion to dismiss was heard by Karen F. Green, J.

          Mark A. Berthiaume (Zachary C. Kleinsasser also present) for the defendants.

          Ryan E. Prophett for the plaintiff.

          Present: Neyman, Ditkoff, & Englander, JJ.

          NEYMAN, J.

         In this case we consider whether the Internet domain name "OrderMyOil.com" is entitled to trademark protection under Massachusetts common law. On the complaint before us, we hold that OrderMyOil.com is a generic name that is ineligible for such protection. Accordingly, this case presents the rare instance in which a trademark claim was properly dismissed under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).

         Background.

         1. Facts.

         The plaintiff, United Oil Heat, Inc., doing business as OrderMyOil.com, delivers home heating oil to customers in Massachusetts, southern New Hampshire, and northern Rhode Island. The plaintiff's website, using the Internet domain name OrderMyOil.com, went live in August 2008.[3]As its name denotes, the website allows customers to order heating oil online for delivery. As of August 2, 2017, OrderMyOil.com had over 20, 000 registered users, had sold over fifteen million gallons of home heating fuel, and had "done approximately $52, 000, 000 in revenue." The plaintiff marketed OrderMyOil.com through various media outlets. OrderMyOil.com also had a Facebook page with over 900 "likes," and delivery trucks displaying OrderMyOil.com thereon. The plaintiff does not allege that it registered OrderMyOil.com as a trademark in the United States or in any other jurisdiction.

         In February of 2016, the defendants, M.J. Meehan Excavating, Inc., and Michael Meehan, began using "OrderYourOil" in connection with their home heating oil delivery services. OrderYourOil is a supplier of home heating and diesel fuel. The complaint alleges that the defendants offer the same goods and services as the plaintiff, in the same geographic areas. The defendants' website likewise allows customers to order heating oil online for delivery.

         2. Procedural history.

         On August 2, 2017, the plaintiff filed its complaint in the Superior Court, alleging common law trademark infringement, trademark dilution under G. L. c. 110H, § 13, [4] and violation of G. L. c. 93A, § 11.[5] The defendants moved to dismiss the complaint under Mass. R. Civ. P. 12 (b) (6). Following a hearing, the judge issued a written decision and order allowing the motion.[6] The judge concluded that OrderMyOil is a generic name that is not entitled to trademark protection, and that the plaintiff failed to state a claim for trademark infringement, trademark dilution, or violation of G. L. c. 93A. Judgment entered for the defendants. The plaintiff now appeals.[7]

         Discussion.

         1. Legal standards.

         a. Motion to dismiss.

         "We review the allowance of a motion to dismiss de novo," Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011), accepting as true the facts alleged in the plaintiff's complaint as well as any favorable inferences that reasonably can be drawn from them. See Lopez v. Commonwealth, 463 Mass. 696, 700 (2012). "What is required at the pleading stage are factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief . . . ." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (Twombly). "Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Twombly, supra at 555.

         b. Trademark ...


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