Xfinity Mobile's 4 Claims Don't Add Factual Allegations, Should Be Dismissed: GGT

Xfinity Mobile’s amended complaint against mobile phone reseller GlobalguruTech (GGT) doesn’t contain any more factual allegations than the original complaint: “It just makes conclusory statements prefaced by ‘upon information and belief’ to try to fill the holes” in the complaint previously identified by the court,” said defendant’s reply brief (docket 2:22-cv-01950) in support of its motion to dismiss four counts of a fraud case in U.S. District Court for Arizona in Phoenix. The court said in June most of the claims in Xfinity’s motion to dismiss were properly pled, but four were lacking. The court previously dismissed a civil conspiracy claim, saying only GGT and Guru Holdings were named. The amended complaint still alleges Jakob Zahara is the sole member that owns and manages the other two named defendants; Xfinity “still has not named any other defendants” but instead alleged a “conspiracy” between defendants and nonparties SNU Unlockers, referred to as an “overseas bulk unlocker,” Juanita S. and Morgan G, whom GGT called “placeholders for co-conspirators to be named later.” Xfinity’s patent infringement claims -- counts 10, 11 and 12 -- should be dismissed because GGT’s use of the Xfinity logo for sellers to use on its website is “permissible under the doctrine of nominative fair use,” it said. Xfinity cited in its response three prongs to determine nominative fair use: that a product is “readily identifiable” without use of the mark; if the defendant used more of the mark than necessary; and if the defendant falsely suggested he was sponsored or endorsed by the trademark holder, said the reply. GGT argued it met all three factors; the court agreed and dismissed counts 10-12, it said. Plaintiffs argued mere usage of the Xfinity logo suggested an affiliation with it, citing cases where defendants used the market in connection with resale of products to consumers. But GGT used the logo only "so the seller of the phone can identify the type of phone they want to sell,” the defendant said. “Plaintiffs must allege more than simply the seller’s use of the Xfinity mark to identify the type of phone to show that GGT was falsely suggesting an affiliation with or an endorsement from Xfinity,” it said. Because the court already gave Xfinity the chance to amend its four claims, “the dismissal should be with prejudice,” said the reply. XM’s Nov. 16 complaint (see 2211300025) alleges the defendants use XM’s financial incentives to buy phones via “unlawful methods” to circumvent policies intended to protect the company and its customers, and then resell the phones “for a substantial profit.”