MEMORANDUM AND ORDER Elara Foodservice Disposables LLC (“Elara” or “Plaintiff”) is a New York limited liability company that contracted with Heze Ju Xin Yuan Food Co., Ltd. (“JXY”), a Chinese company, in May 2020 to purchase vinyl disposable gloves Elara brought this action against JXY and its agent, Biao Li, also known as Brad Lee (“Lee” and together, “Defendants”), alleging that JXY breached its obligations under their contract (the “Contract”) and subsequently violated federal trademark laws. Defendants move to compel arbitration of this dispute and to dismiss three of the four counts that Elara has brought against them. For the following reasons, Defendants’ motion to compel is denied and their motion to dismiss is granted in part and denied in part. I. Background The following facts are taken from the Complaint. For the purposes of this motion, the Court must accept them as true and draws all reasonable inferences in favor of Elara. Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 458 (2d Cir. 2019) (Explaining that at the motion to dismiss stage, courts must accept facts alleged in a complaint as true and draw all reasonable inference in favor of the plaintiff). The Contract between Elara and JXY required JXY to deliver 30 shipping containers’ worth of vinyl disposable gloves to Elara in several installments. The installment schedule was established in connection with the Contract, and Elara alleges that this schedule was important in its decision to enter into the Contract due to ongoing supply chain constraints during the COVID-19 pandemic. Under the Contract, Elara was required to make deposits to secure the shipments, and the release of the deposits was in turn conditioned on JXY meeting certain quality control, price, and delivery requirements for each shipment. In total, Elara paid $862,308 in deposits to JXY for the 30 shipments. In accordance with the Contract, delivery of the installments was documented with 30 purchase orders that Elara issued and 30 corresponding proforma invoices that JXY issued.1 Elara alleges that after it received the proforma invoices, JXY breached the Contract by failing to comply with both the price and delivery dates for the goods. Then, in February 2021, Elara became aware that the shipped gloves did not meet the quality control requirements of the Contract. On or about February 23, 2021, Elara notified JXY of these quality control issues. By the end of February 2021, Elara instructed JXY to cease shipments. However, as of March of that year, JXY had continued fulfilling shipments, holding Elara’s deposits, and demanding fulfillment of payment for the shipments of defective gloves. In July 2021, Elara discovered that JXY had shipped gloves in boxes containing Elara’s name to other companies with no connection to Elara. JXY also demanded payment from Elara for these shipments. Elara claims that these shipments of gloves containing Elara’s trademark have tarnished its brand reputation and violated its rights under the Lanham Act, 15 §U.S.C. 1051 et seq. Elara has brought four counts against Defendants: (i) breach of contract against JXY, (ii) fraud in the inducement against Lee, (iii) conversion against JXY, and (iv) federal trademark infringement against JXY. Defendants seek to compel arbitration based on an arbitration clause contained in the 30 proforma invoices pertaining to the 30 shipments, and in the alternative, to dismiss the fraud, conversion, and trademark infringement claims against them under Rule 12(b)(6). II. Arbitration Provision Each of the 30 shipments provided for in the Contract has a corresponding purchase order and proforma invoice. Each proforma invoice is dated May 8, 2020, and each contains an identical arbitration provision: 6. Arbitration: All disputes with this Sales Contract shall be settled between buyer and seller. If there is no settlement be reached for both sides, this case shall be submitted to the China International Economic and Trade Arbitration Commission. The conclusion from China international economic and trade arbitration commission shall be considered [sic] Defs.’ Mot. to Dismiss, Ex. B. The provision is reproduced here exactly as it appears in the invoices, with the same typographical errors and the same final sentence that appears to be cut off. III. Motion to Compel Defendants have moved to compel arbitration based on the above arbitration clause. To resolve a motion to compel arbitration, courts apply a two-step approach to determine: “(1) whether the parties have entered into a valid agreement to arbitrate; and if so, (2) whether the dispute at issue comes within the scope of the arbitration agreement.” In re Am. Express Fin. Advisors Sec. Litig., 672 F.3d 113, 128 (2d Cir. 2011). The party seeking to compel arbitration bears the burden of showing that the parties agreed to arbitrate in the first place. Jillian Mech. Corp. v. United Serv. Workers Union Local 355, 882 F. Supp. 2d 358, 364 (E.D.N.Y. 2012) (“On a motion to compel arbitration, the moving party has the initial burden of showing that an agreement to arbitrate exists.”). Defendants have failed to meet this burden. “[W]hen determining whether a contract to arbitrate has been established for the purposes of the FAA, federal courts should apply ‘ordinary state-law principles that govern the formation of contracts’ to decide ‘whether the parties agreed to arbitrate a certain matter.’” Sinnett v. Friendly Ice Cream Corp., 319 F. Supp. 2d 439, 443 (S.D.N.Y. 2004) (quoting First Options, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). In doing so, the Court applies a standard similar to that applied when deciding a summary judgment motion, drawing reasonable inferences in favor of the non-moving party. See Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003). Defendants arguably could show that the parties intended to arbitrate since there is a fragment of an arbitration clause contained in the invoices, which were initialed by representatives of JXY and of Elara. However, Defendants cannot show what the terms of that agreement might be since the provision ends with an unfinished sentence. As Elara points out, the missing clause could change the meaning of the agreement drastically.2 Parties must agree to an arbitration’s essential terms. See Dreyfuss v. Etelcare Global Solutions-U.S. Inc., 349 Fed. App’x 551, 554 (2d Cir. 2009) (citing Opals on Ice Lingerie v. Bodylines Inc., 320 F.3d 362, 369 (2d Cir. 2003)) (holding that as in Opals, where the party moving to compel arbitration could not produce a single document containing an entire arbitration clause, a purported agreement to arbitrate could not be enforced). This proposition is derived from the basic principle of contract law that a contract is not enforceable if its material terms are not reasonably certain. See Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp., 74 N.Y.2d 475, 482, 548 N.Y.S.2d 920, 923, 548 N.E.2d 203, 2206 (1989) (“Few principles are better settled in the law of contracts than the requirement of definiteness. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract.”). Without knowing what terms of a contract exist, a court is simply unable to determine whether a contract has been breached. Id. Since JXY is unable to produce all the material terms of the agreement to arbitrate, the parties cannot be compelled to arbitrate this dispute. IV. Motion to Dismiss “To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The pleading must offer more than “bare assertions,” “conclusory” allegations, and a “formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678. JXY moves under Rule 12(b)(6) to dismiss Elara’s fraud, conversion, and trademark infringement claims.3 a. Fraud in the Inducement—Count Two Elara alleges fraudulent inducement against Lee based on his alleged misrepresentations about the ability of JXY to satisfy the Contract’s specifications regarding the quality, price, and delivery dates of the glove shipments. JXY argues that these claims should be dismissed because they are essentially a recitation of the breach of contract claim. In New York,4 to state a claim for fraudulent inducement a plaintiff must allege that: (i) the defendant made a material, false representation, (ii) the defendant intended to defraud the plaintiff thereby, (iii) the plaintiff reasonably relied upon the representation, and (iv) the plaintiff suffered damage as a result of his or her reliance on this misrepresentation. Wall v. CSX Transp., Inc., 471 F.3d 410, 415 (2d Cir. 2006). “In the context of a contract case, the pleadings must allege misrepresentations of present fact, not merely misrepresentations of future intent to perform under the contract, in order to present a viable claim that is not duplicative of a breach of contract claim…Moreover, these misrepresentations of present fact must be collateral to the contract.” Wyle Inc. v. ITT Corp., 130 A.D. 3d 438, 439, 13 N.Y.S. 3d 375 (2015). “A representation is collateral to a contract when it pertains to present facts and not ‘promissory statement[s] of what will be done in the future.’” Pacific M. Intern. Corp. v. Raman Intern. Gems, Ltd., 888 F. Supp. 2d 385, 398 (2d Cir. 1992) (quoting Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171,184 (2d Cir. 2007)). Here, the facts that Elara alleges for its fraudulent inducement claim are essentially a restatement of its breach of contract claim. Elara contends that Lee committed fraud by failing to meet the quality control standards, delivery schedule, and pricing outlined in the Contract, that “[t]hese representations by JXY [through Lee] were false” and that Lee “knew or should have known that JXY’s quality control representations were false.” Compl.
