Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Foreign Candy Co., Inc. v. Promotion In Motion, Inc.

United States District Court, N.D. Iowa

June 20, 2013


Page 935

For Foreign Candy Company, Inc, Plaintiff: Michael W Ellwanger, LEAD ATTORNEY, Rawlings Ellwanger Jacobs Mohrhauser & Nelson, L.L.P., Sioux City, IA; Alicia M Passerin, Douglas M Hall, Jonathan C Parks, PRO HAC VICE, Pietragallo, Gordon, Alfano, Bosick & Raspanti, LLP, Pittsburg, PA.

For Promotion in Motion, Inc, Defendant: Michael A Dee, LEAD ATTORNEY, Brown, Winick, Graves, Gross, Baskerville & Schoenebaum, PLC, Des Moines, IA; Jonathan Z King, Richard S Mandel, Cowan, Liebowitz & Latman, PC, New York, NY.


Page 936


Donald E. O'Brien, Senior United States District Judge.

Presently before the Court is Defendant, Promotion In Motion, Inc.'s [hereinafter the Defendant], Motion to Dismiss. Docket No. 9. The parties appeared telephonically for hearing on March 26, 2013. After listening to the parties' arguments, the Court took the matters under consideration and now enters the following.


At this early stage of the case, few facts are before the Court. However, the following background is relevant to the present Motion to Dismiss:

This case involves two, competing candy companies. The Plaintiff, Foreign Candy Company, Inc. [hereinafter the Plaintiff], a corporation headquartered in this district,

Page 937

" is engaged in the business of importing, distributing, and selling candy products throughout the United States..." Docket No. 14, p. 2. It " is a leader and an innovator in the candy industry. By virtue of the significant investment that [the Plaintiff] makes in branding its products, [the Plaintiff] has gained significant recognition in the minds of consumers throughout the United States and abroad as a source of quality candy products." Id. Similarly, the Defendant is a " leading candy manufacturer and marketer located in New Jersey." Docket No. 9, Att. #1, p. 1.

In its capacity as a candy marketer, the Defendant owns the rights to (what it says is a popular) sour watermelon candy, known as Sour Jacks. [Hereinafter the Defendant's watermelon candy will be referred to as SJC.] From the parties filings, it is unclear how long SJC has been on the market, although it seems undisputed that SJC predated any watermelon candy made by the Plaintiff.

Around September 2012, the Plaintiff introduced a sour watermelon candy into the local and national marketplace, called Upnext Gummies. [Hereinafter the Plaintiff's watermelon candy will be referred to as the UNG.] According to the Plaintiff, it invested significant time and resources in bringing UNG to the market. As is demonstrated by the exhibits, there is, at the least, some superficial similarity between SJC and UNG.

Sometime in 2012, the Defendant became aware of UNG's existence. The Defendant responded to the existence of UNG by sending a cease and desist letter to the Plaintiff at its headquarters, located in this district, on November 12, 2012. See Docket No. 14, Ex. A. In short, the letter set out the Defendant's history with SJC, stated that the Defendant believes that UNG unfairly infringes SJC's trademark, and concluded that the Defendant may be entitled to legal recourse if the Plaintiff went forward with UNG.

Shortly there after, on November 28, 2012, the Plaintiff filed the present suit in this Court. See Docket No. 1. In its Complaint, the Plaintiff " sees a Declaratory Judgment of non-infringement and other equitable relief and compensatory damages arising from Defendant's conduct." Docket No. 1, p. 1.

As will be discussed in greater detail below, the current fighting issue is whether this Court has personal jurisdiction over the Defendant. Pursuant to that dispute, the following facts are relevant:

It seems that both the Plaintiff and the Defendant have sold some of their products in the other's home state. However, while the Defendant's SJC has been sold in Iowa, this case arose before the Plaintiff had the opportunity to sell UNG in New Jersey. [1] Additional facts and allegations will be discussed below.


The Defendant's Motion to Dismiss raises two primary issues. The first is that this Court lacks personal jurisdiction over the Defendant. Specifically, the Defendant

Page 938

argues the Court does not have specific personal jurisdiction because none of the events giving rise to the Complaint occurred in Iowa, and the Court does not have general personal jurisdiction because it did not have continuous and systematic contacts with this jurisdiction.

Second, the Defendant argues that the case should be dismissed, because the Plaintiff's Complaint is an anticipatory declaratory judgment action, filed for the express purpose of depriving the Defendant of its choice, home, forum. Specifically, the Defendant argues that the Plaintiff filed this case shortly after receiving a cease and desist letter from the Defendant that alerted the Plaintiff to the impending litigation.

The court will consider each of these ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.