Memorandum and OrderI. Introduction Pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Mid America Mortgage, Inc. (“Defendant” or “Mid America”) moves to dismiss the First Amended Compliant (“FAC”) of Plaintiff Reliance First Capital, LLC (“Plaintiff” or “Reliance”), which alleges, inter alia, trademark infringement by Defendant. (See ECF No. 35 (hereafter, the “Dismissal Motion” or “Motion”); see also ECF No. 23 (FAC).) Plaintiff opposes the Motion. (See ECF No. 36-13 (hereafter, “Opp’n”). For the following reasons, the Dismissal Motion is granted.II. BackgroundA motion to dismiss pursuant to Rule 12(b)(2) of the Federal rules of Civil Procedure is “inherently a matter requiring the resolution of factual issues outside of the pleadings.” St. Paul Fire and Marine Ins. Co. v. Eliahu Inc. Co., No. 96-cv-7269, 1997 WL 357989, at *1 (S.D.N.Y. June 26, 1997), aff’d, 152 F.3d 920 (2d Cir. 1997) (citations omitted); see also MedPay Systems, Inc. v. MedPay USA, LLP, No. 06-cv-1054, 2007 WL 1100796, at *1 (E.D.N.Y. Mar. 29, 2007)(same). “[T]herefore ‘all pertinent documentation submitted by the parties may be considered in deciding the motion.’” Redhawk Hldgs. Corp. v. Craig Invs., LLC, No. 15-cv-9127, 2016 WL 6143355, *3 (S.D.N.Y. Oct. 19, 2016) (quoting Eliahu Ins., 1997 WL 357989, at *1). Hence, the following facts are drawn from the FAC and the affidavits1 and documentary exhibits submitted by Plaintiff and Defendant. See MedPay, 2007 WL 1100796, at *1.A. By the Plaintiff1. Factual Allegations in the FAC“Plaintiff is a Delaware limited liability company with its principal place of business and headquarters located [in] Melville, New York.” (FAC, 1.) For approximately ten years, and operating in thirty-five states, it has “provide[d] real estate home mortgage loans and related services (“Mortgage Services”). (Id., 6.) In 2008, Plaintiff acquired all rights in and to the “CLICK AND CLOSE” mark (hereafter, the “CAC Mark” or “Mark”) and its associated proprietary software tool (hereafter, “Software”), which had been coined and developed, respectively, years earlier. (See id., 8.) Both Plaintiff and the entity from which it acquired the Mark, have used the CAC Mark “to identify and distinguish its [M]ortgage [S]ervices from those of competitors.” (Id.)“Plaintiff provides its services to residential borrowers, to third-party loan purchases, and to third-party loan securitizers.” (Id., 9.) It “originates loans and then sells them…to banks and other financial institutions or institutional investors, who buy the loans and service them.” (Id., 15.) While “Plaintiff sells all of the loans it originates, it retains servicing rights on a growing number of its loan originations.” (Id., 17.) In selling its loans, Plaintiff has relied upon its CAC Mark and its Software to entice purchasers to buy those loans and use Plaintiff’s Mortgage Services. (See id.,
15-18, 21.) Plaintiff alleges that the CAC Mark “is recognized within the industry, and mortgage professionals publically [sic] refer to the CLICK AND CLOSE™ Mark in touting the high quality of Plaintiff’s services.” (Id., 22; see also id., 24 (“As a result of Plaintiff’s longstanding use of the CLICK AND CLOSE™ Mark, such mark has come to be associated with Plaintiff as a designator of Plaintiff’s high-quality [M]ortgage [S]ervices.”). Plaintiff alleges the CAC Mark is strong. (See id., 35.)As to Defendant, Plaintiff alleges, inter alia, it is a direct competitor, using mortgage loan originators to conduct its competing mortgage services offerings, and providing mortgage services to consumers. (See id.,
