District Judge Lawrence Vilardo

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The court considered the magistrate's report and recommendation on defendant's motion to dismiss plaintiff's trademark infringement and Lanham Act action for lack of subject-matter jurisdiction and on plaintiff's request for Rule 11 sanctions. In support of its motion to dismiss, defendant argued that plaintiff had failed to plead claims arising out of federal law or raising a substantial federal question. The court adopted the magistrate's recommendation to deny defendant's motion to dismiss, finding that plaintiff's complaint alleged violations of the Lanham Act. The court rejected defendant's argument that establishing activity “in commerce” was a jurisdictional element of the Lanham Act. Instead, the court found that “in commerce” was an element of the cause of action. The court further ruled that plaintiff's claim was non-frivolous because it alleged that its business involved interstate commerce and that defendant interfered with that business by advertising similar services as offered by plaintiff under a trade name using the words “sit” and “stay,” like plaintiff's business. Finally, the court denied plaintiff's request for sanction because it failed to make a separate motion or comply with thesafe harbor requirements of Rule 11.

District Judge Lawrence Vilardo