Heard: October 10, 2018.
action commenced in the Superior Court Department on August
motion to dismiss was heard by Karen F. Green, J.
A. Berthiaume (Zachary C. Kleinsasser also present) for the
E. Prophett for the plaintiff.
Present: Neyman, Ditkoff, & Englander, JJ.
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).
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.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.
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
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,
and violation of G. L. c. 93A, § 11. 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. 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.
Motion to dismiss.
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.