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Kule LLC v. Alfwear Inc.

Amended Complaint Is Dismissed as Improper Anticipatory Suit for Declaratory Relief

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MEMORANDUM ORDER Plaintiff Kule, LLC (“Plaintiff” or “Kule”) brings this action for declaratory judgment against Defendant Alfwear, Inc. (“Alfwear” or “Defendant”), in which Kule seeks a declaration that the United States Patent and Trademark Office (“USPTO”) may re-register Kule’s pending trademark application, and that such trademark does not infringe upon or dilute any rights of Alfwear. (Docket entry no. 37 (“Am. Compl.”).) Alfwear moves to dismiss the Amended Complaint, arguing that this suit is an improper anticipatory declaratory judgment action. (Docket entry no. 38.) Before Alfwear moved to dismiss the Amended Complaint, it initiated suit against Kule in the United States District Court for the District of Utah for federal trademark infringement and unfair competition, and common law unfair competition (the “Utah Action”). That second-filed suit, Alfwear argues, should proceed in lieu of this improper anticipatory filing. The Court has reviewed carefully the parties’ submissions in connection with the instant motion and, for the following reasons, grants Defendant’s motion to dismiss without prejudice to litigation of the instant claims in the Utah Action. BACKGROUND¹ Founded by Nikki Kule in 2001, Kule (pronounced “kewel,” as in “jewel”) is a limited liability company that has its principal place of business in New York and sells various apparel items under its KULE trademark. (Am. Compl.

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