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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

PHILIP MORRIS USA, INC. Plaintiff, v. TABOCA AS and NORDIC AMERICAN SMOKELESS INC. Defendants

: : CIVIL ACTION : : DOCKET NO.: 08-028-SLR : : : : : : : : :

_________________________________________________________________ MEMORANDUM OF LAW IN SUPPORT OF DEFEDANT NORDIC AMERICAN SMOKELESS INC'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT OR, ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT _________________________________________________________________

Andrew S. Dupre (DE Bar ID No. 4621) MCCARTER & ENGLISH Renaissance Centre 405 N. King Street, 8th Floor Wilmington, DE 19801 302-984-6300 Attorneys for Defendant, Nordic American Smokeless Inc.

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TABLE OF CONTENTS PAGE

I. II. III. IV.

NATURE OF THE PROCEEDINGS..................................................................................1 SUMMARY OF THE ARGUMENT ..................................................................................1 STATEMENT OF FACTS ..................................................................................................2 ARGUMENT A. B. Standard of Review..................................................................................................4 The Complaint Fails To Provide Nordic American With Fair Notice Of The Specific Claims Against It And Therefore Should Be Dismissed ...........................6 In The Alternative, Nordic American Is Entitled To Summary Judgment Of Non-Infringement ....................................................................................................9

C.

V.

CONCLUSION..................................................................................................................12

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TABLE OF AUTHORITIES CASES 800-Jr Cigar, Inc. v. GOTO.com, Inc., 437 F. Supp. 2d 273 (D.N.J. 2006)........................9 Academy of Motion Picture Arts & Sciences v. Network Solutions, Inc., 989 F. Supp. 1276 (C.D. Cal. 1997)........................................................................................11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ........................................................5 Bell Atlantic Corp. et al. v. Twombly et al., 127 S. Ct. 1955 (2007) .......................4, 7, 8, 9 Bosley Medical Institute Inc. v. Kremer, 74 U.S.P.Q. 2d 1280 (9th Cir. 2005) ................11 Carter v. Stanto, 405 U.S. 669 (1972) .................................................................................5 Celetex Corp. v. Catrett, 477 U.S. 317 (1986) ...................................................................5 Christopher v. Harbury, 536 U.S. 403, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002) ...........4 Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) ...................................4 Erickson v. Pardus, ---, U.S. -- 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)......................4 Evancho v. Fisher, 423 F.3d 347 (3d. Cir. 2005) ................................................................7 H.J. Inc. v. Northwestern Bell Telegraph, Co., 492 U.S. 229 (1989)..................................5 Hishon v. King and Spalding, 467 U.S. 69 (1989) ..............................................................5 Kulwicki v. Dawson, 969 F.2d 1454 (3d Cir. 1992) ............................................................5 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) ..............................................6 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ..........6, 11 Morse v Lower Merion School District, 132 F.3d 902 (3d Cir. 1997) ............................4, 7 Optimum Technologies Inc. v. Hankel Consumer Adhesives Inc., 496 F.3d 1231 (11th Cir 2007).............................................................................................................11 ii
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Parker v. Learn Skills Corp., 530 F. Supp. 2d 661 (D. Del. 2008) .................................8, 9 Phillips v. Alleghany County, 515 F.3d 224 (3rd Cir. 2008) ...............................................8 Prestonettes, Inc. v. Coty, 264 U.S. 359 (1924).................................................................11 Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989) ........................................................................5 S Industries, Inc. v. GMI Holdings, Inc., 1998 WL. 67627 ..............................................10 S&L Vitamins, Inc. v. Australian Gold, Inc., 521 F. Supp. 2d 188 (E.D.N.Y. 2007) ..............................................................................................................................9 Site Pro-1, Inc. v. Better Metal, LLC, 506 F. Supp. 2d 123 (E.D.N.Y. 2007)...................10 Southern Cross Overseas Agencies, Inc., et al., v. Wah Kwong Shipping Group Ltd., 181 F.3d 410 (3d Cir. 1999) .................................................................................6 Uhaul International, Inc. v. Whenu.com, Inc., 279 F. Supp. 2d 723 (E.D. Va. 2003) ............................................................................................................................10

RULES AND STATUTES 15 U.S.C. § 1127................................................................................................................10 Fed. R. Civ. P. 8...................................................................................................................1 Fed.R.Civ.P. 10(c) ...............................................................................................................5 Fed.R.Civ.P. 12(b)(6)...........................................................................................................5 Fed.R.Civ.P 56(c) ................................................................................................................5 MISCELLANEOUS 5B Charles A Wright & Arthur R. Miller, Federal Practice and Procedure §§ 1357, 1248.......................................................................................................................4, 6 Moore's Federal Practice 3d § 12.34[2] ...............................................................................5

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I.

NATURE OF THE PROCEEDINGS On March 19, 2008, Plaintiff Philip Morris USA Inc. filed a First Amended Complaint

(the "Complaint") against Taboca AS and Nordic American Smokeless Inc. ("Nordic American") alleging trade name infringement, trademark infringement, unfair competition and related claims based on Defendants' alleged use in United States commerce of the TABOCA trade name and trademark. Nordic American's time to respond to the Complaint was extended by stipulation of the parties and order of the Court. Nordic American now moves to dismiss, or, in the alternative, for summary judgment, because all of the factual allegations of the Complaint are directed only to Taboca AS, leaving no basis for any claim against Nordic American. In the event that the Complaint is deemed to be sufficient under Fed. R. Civ. P. 8 and 12(b)(6), Nordic American has attached a Declaration from an appropriate corporate officer indicating that Nordic American has never sold any product of any type, let alone a product infringing on Plaintiff's trademark. Summary Judgment is thus appropriate. II. SUMMARY OF THE ARGUMENT 1. The Complaint fails to make any specific allegations against Nordic American to

provide notice of the claims against it. Rather, all but two of the factual allegations are directed at the other Defendant, Taboca AS. Those directed to Nordic American are merely its incorporation information (Compl. ¶ 4) and that it applied for certain trademarks (Compl. ¶15). Those facts even if true cannot provide a basis for any action at law. To the extent factual allegations exist in the counts themselves, they are conflated into all "Defendants" without any allegation of what Nordic American as opposed to Taboca AS is supposed to have done . Such vague and conclusory allegations do not provide "fair notice" as required by Fed. R. Civ. P. 8(a)

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and cannot survive a motion to dismiss. Moreover, the factual allegations that are made against all "Defendants" are speculative with respect to Nordic American. The Internet web pages attached as Exhibits to the Complaint that allegedly prove that the "Defendants" are using the TABOCA trade name and mark in U.S. commerce, do not mention Nordic American under either its current or former name, let alone show in any way that Nordic American is using such name or mark in U.S. commerce. 2. In the alternative, Nordic American indisputably is not using the TABOCA trade

name or mark in U.S. commerce. To the contrary, Nordic American changed its name from "Taboca USA Inc." to "Nordic American Smokeless Inc." in January 2008, announced its new name to the industry, and is promoting its company and upcoming products under its new name and under the NORDIC ICE and KLONDIKE trademarks. Every cause of action in the Complaint is based on the allegation that Nordic American is using the TABOCA trade name and mark in U.S. commerce. Nordic American has demonstrated the absence of any evidence showing this material fact, Plaintiff cannot produce any such evidence because Nordic American indisputably is not using the name or mark, and therefore summary judgment should be granted in favor of Nordic American. III. STATEMENT OF FACTS Defendant Nordic American is a Delaware corporation with a principal place of business at 100 Mill Plain Road, Danbury, Connecticut 06811. (Quinn Declaration ¶ 3). Nordic American incorporated in Delaware as Taboca USA Inc. on April 25, 2007. On January 22, 2008, Taboca USA Inc. changed its name to Nordic American Smokeless Inc. following a ruling by the USPTO that Nordic American's prior use of the TABOCA trade name was not sufficient to prevent registration of Plaintiff's TABOKA mark. On January 31, 2008, Nordic American

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announced to the trade in a press release that it had changed its name to Nordic American Smokeless Inc. Nordic American is not using its former TABOCA trade name, and has no plans or desire to revert to, promote or otherwise use in commerce such trade name. (Quinn Declaration ¶ 4). Nordic American has no plans or desire to sell any TABOCA brand products. (Quinn Declaration ¶ 9). Nordic American has never produced, distributed, sold or offered for sale any smokeless tobacco products anywhere in the world, either prior to or since its corporate name change. (Quinn Declaration ¶ 5). It is planning to offer smokeless tobacco products for sale in the United States in the near future under its KLONDIKE and NORDIC ICE trademarks, and has begun to publicize these brands in advertisements and trade literature under the Nordic American Smokeless Inc. trade name. (Quinn Declaration ¶ 6; Eder Declaration, Exs. C and D). Nordic American has not in the past had, and currently does not have, any involvement or affiliation with either of the two internet web pages, www.BuySnus.com and www.Northerner.com, which are attached to the Complaint as Exhibits C and D, respectively. (Quinn Declaration ¶ 11). Contrary to Plaintiff's assertion, neither web page identifies Nordic American, much less shows that Nordic American is involved in the sale of goods under the TABOCA trade name and mark. According to the Complaint, Taboca AS is a Norwegian limited liability company, incorporated in Norway in 2004, with its principal place of business at Bygdoy Alle 17, 0262 Oslo, Norway. (Complaint ¶ 3). Nordic American and Taboca AS are separate corporations, that are separately capitalized, operate independently in different locations in different countries, with different overall directors, officers and employees, and different overall shareholders. Contrary to Plaintiff's assertion, Nordic American is not a subsidiary of Taboca AS. (Quinn Declaration ¶ 8). Nordic American does not purchase or receive from Taboca AS any TABOCA

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brand products for resale or distribution in the United States or anywhere else. (Quinn Declaration ¶ 9). IV. ARGUMENT A. Standard Of Review

In addressing a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and take them in the light most favorable to Plaintiff. Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). A complaint must contain " `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' " Bell Atl. Corp. v. Twombly, U.S. --- U.S. ----, ----, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Although a complaint does not need detailed factual allegations, "a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965 (citations omitted). The "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must make specific allegations to put each defendant on notice of the claims against it, and vague and conclusory allegations that do not provide "fair notice" will not survive a motion to dismiss. Morse v Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); 5B Charles A Wright & Arthur R. Miller, Federal Practice and Procedure § 1357.

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The Court is permitted to consider the pleadings and matters of public record when considering a motion to dismiss. 15 Moore's Federal Practice 3d § 12.34[2] (Matthew Bender 3d ed.); Fed.R.Civ.P. 10(c) (documents attached to pleadings are part of pleadings). Any written instrument attached to a pleading becomes part of that pleading and may be considered when deciding a motion to dismiss. Fed.R.Civ.P. 10(c) (any written instrument which is an exhibit to a pleading is a part thereof for all purposes); Rose v. Bartle, 871 F.2d 331, 339-40 n.3 (3d Cir. 1989); See also 15 Moore's Federal Practice 3d § 12.34[2] (Matthew Bender 3d ed.) (The courts may consider documents attached to the complaint and undisputed documents alleged or referenced in the complaint, and may take judicial notice of public records). Alternatively, if the Court finds it necessary to consider the attached Declarations and/or Exhibits thereto not of public record when assessing the viability of Plaintiffs' claim, this motion to dismiss may be converted into a motion for summary judgment. Fed.R.Civ.P. 12(b)(6); Carter v. Stanto, 405 U.S. 669, 671 (1972); Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and answers on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving Party is entitled to a judgment as a matter of law." Fed.R.Civ.P 56(c). An issue is "genuine" only if there is sufficient evidence with which a reasonable jury could find for a non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Furthermore, a factual dispute is only "material" if it might affect the outcome of the case. Id. at 248. Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Celetex Corp. v. Catrett, 477 U.S.

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317, 325 (1986). If this initial burden is met, then the non-moving party bears the burden of demonstrating that there are disputes of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, the non-moving party must produce evidence to support its position, and may not rest on conclusory allegations or bare assertions. Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990). B. The Complaint Fails To Provide Nordic American With Fair Notice Of The Specific Claims Against It And Therefore Should Be Dismissed.

The Complaint fails to make any specific allegations against Nordic American to put Nordic American on notice of the claims against it. Rather, almost every allegation against Nordic American refers to "Defendants" without identifying the party or parties. "[I]n order to state a claim for relief, actions brought against multiple defendants must clearly specify the claims with which each individual defendant is charged." 5 Charles A Wright & Arthur R. Miller, Federal Practice and Procedure § 1248. In fact, the only allegation that specifically identifies Nordic American is paragraph 15(f) which states: "On May 16, 2007, Taboca USA Inc. [now Nordic American] filed five trademark applications with the USPTO for various marks in connection with smokeless tobacco." (Complaint ¶ 15(f)). This specific allegation does not in any way support a claim that Nordic American is using in commerce the TABOCA trade name or mark and therefore is committing trade name and trademark infringement. To the contrary, as indicated by the official records of the U.S. Patent & Trademark Office attached to the accompanying Declaration of Elizabeth Swift, these five applications relate to entirely different trademarks, and therefore only reinforce the fact that Nordic American is not using, and has no plans to use the TABOCA trade name or mark.1 (Swift Declaration ¶¶ 3-7, Exhibits E-I); see Southern Cross Overseas Agencies, Inc., et al., v. Wah Kwong Shipping Group Ltd., 181 F.3d
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These trademark applications are directed to the following five trademarks: KLONDIKE, NORDIC ICE, BONANZA, FREEBIRD, and NORDIC SNUS.

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410, 426 (3d Cir. 1999) (In addressing a motion to dismiss, the court may properly look at public records, in addition to the allegations in the complaint). It is well settled that a complaint that relies on such vague and conclusory allegations does not provide fair notice and should not survive a motion to dismiss. Morse v. Lower Merion School Dist., 132 F.3d at 902, 906 (3d Cir. 1997); Evancho v. Fisher, 423 F.3d 347, 351 (3d. Cir. 2005) ("court need not credit a complaint's `bald assertions' or `legal conclusions' when deciding a motion to dismiss"). Not only are the factual allegations made against Nordic American vague and conclusory, but they are speculative as well. The only evidence identified by Plaintiff in the Complaint to support its allegation that Nordic American is using in commerce the TABOCA trade name and mark are copies of Swedish Internet web pages attached as Exhibits C and D. Exhibit C is a copy of the "www.BuySnus.com" web page, and Exhibit D is a copy of the "www.Northerner.com" web page. Neither web page mentions Nordic American either by its current or former name, much less shows that Nordic America is using the TABOCA trade name and mark in U.S. commerce. Rather, it is only through speculation -- without any proffered factual basis even on information and belief -- that Plaintiff can allege that Nordic American was involved in the sale of TABOCA brand snus to these Swedish-based Internet retailers. Twombly, 127 S.Ct. at 1965 ("Factual allegations must be enough to raise a right to relief above the speculative level."). Analysis of these claims is assisted by the Supreme Court's recent opinion in Bell Atlantic Corp. et al. v. Twombly et al., 127 S. Ct. 1955, 1965 (2007). In affirming dismissal of vague and imprecise Sherman Act claims, the Court held: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to 7
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relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).(internal citations and punctuation omitted). The Court went on to criticize the dissent's view that Rule 8 absolves a plaintiff from the duty to plead facts sufficient to place the other party on notice of its claims: The dissent greatly oversimplifies matters by suggesting that the Federal Rules somehow dispensed with the pleading of facts altogether. While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant set out in detail the facts upon which he bases his claim, Rule 8(a)(2) still requires a showing, rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only "fair notice" of the nature of the claim, but also "grounds" on which the claim rests. Twombly, 127 S. Ct. 1955 at fn. 3(internal citations and punctuation omitted; emphasis original). The Third Circuit very recently recognized in Phillips v. Alleghany County, 515 F.3d 224, 232 (3rd Cir. 2008) that Twombly moved the bar for the necessity of fact pleading to survive a Fed. R. Civ. P. 12(b)(6) motion: "We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only `fair notice,' but also the `grounds' on which the claim rests." The Third Circuit test for the presence of sufficient facts considers the context of the claims presented: "Context matters in notice pleading. Fair notice under Rule 8(a)(2) depends on the type of case-some complaints will require at least some factual allegations to make out a showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Id. (internal citations and quotation marks omitted). Complex commercial actions based on statutes, such as the Lanham Act or the Sherman Act, seem to require heightened scrutiny. This Court has also recognized that Twombly requires a degree of attention to the factual allegations against specific defendants that this Complaint lacks. In Parker v. Learn Skills Corp. 8
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530 F.Supp. 2d 661 (D. Del. 2008), this Court applied Twombly to dismiss the Lanham Act claims more thoroughly supported by factual allegations than those made against Nordic American in this case. In Parker, the plaintiff at least alleged specific misrepresentations that the defendants supposedly had made, yet he still could not escape dismissal under Twombly. Id. The law from the Supreme Court, the Third Circuit, and the District of Delaware, and this Court's recent opinions is clear: the Complaint fails to make fact allegations against Nordic American sufficient to survive a challenge under Fed. R. Civ. P. 12(b)(6). Merely stating that Nordic American exists and once applied for some trademarks does not a cause of action state. Attempting to piggyback claims against Nordic American onto factual allegations made only against Taboca AS is exactly the type of vague pleading prohibited by Twombly. Dismissal under Fed. R. Civ. P. 12(b)(6) is therefore appropriate. C. In The Alternative, Nordic American Is Entitled To Summary Judgment Of Non-Infringement.

To establish violations of Section 43(a) of the Lanham Act, a plaintiff must show (1) ownership of a valid and legally protectable mark; (2) that defendant used the mark "in commerce"( 3) "in connection with the sale, offering for sale, distribution, or advertising" of goods and services (4) in a manner likely to confuse customers. 800-Jr Cigar, Inc. v. GOTO.com, Inc., 437 F. Supp. 2d 273, 281-282 (D.N.J. 2006) (citation omitted). Although "use," "in commerce," and "likelihood of confusion" are three distinct elements of a trademark infringement claim, "'use' must be decided as a threshold matter because, while any number of activities may be considered `in commerce' or create a likelihood of confusion, no such activity is actionable under the Lanham Act absent the `use' of a trademark." S&L Vitamins, Inc. v. Australian Gold, Inc., 521 F. Supp. 2d 188, 199 (E.D.N.Y. 2007).

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A mark is deemed to be in use in commerce on goods when the mark is placed in any manner on the goods and the goods are sold or transported in commerce. Uhaul Int'l, Inc. v. Whenu.com, Inc., 279 F.Supp. 2d 723, 727 (E.D. Va. 2003). See also 15 U.S.C. § 1127; S Industries, Inc. v. GMI Holdings, Inc., 1998 WL 67627, at *5 ("Under common law, "use" means sales to the public of a product with the mark attached."). It follows that there is no trademark "use" where a defendant does not place the mark on any product or good. Id. See also Site Pro-1, Inc. v. Better Metal, LLC, 506 F. Supp. 2d 123, 127 (E.D.N.Y. 2007) ("The key question is whether the defendant placed plaintiff's trademark on any goods, displays, containers, or advertisements, or used plaintiff's trademark in any way ... [T]here is no allegation that [Defendant] did so, and therefore no Lanham Act "use" has been alleged."). As set forth in the attached Declaration of Darren Quinn, Nordic American indisputably is not using the TABOCA trade name or mark in U.S. commerce. (Quinn Declaration ¶ 3). Moreover, to date, Nordic American has not produced, distributed, sold or offered for sale any products anywhere in the world. (Quinn Declaration ¶ 5). Every cause of action in the Complaint is based on the fundamental allegation that Nordic American is using the TABOCA trade name and mark in U.S. commerce. The first cause of action for trade name infringement and unfair competition under the § 43(a) of the Lanham Act is based on the allegation that Defendants are "publicly using the TABOCA trade name and mark in U.S. commerce" (Complaint ¶ 26); the second cause of action for trademark infringement under § 43(a) of the Lanham Act is based on the allegation that "Defendants currently are selling smokeless tobacco products under the TABOCA mark to U.S. consumers" (Complaint ¶ 29); the third cause of action for deceptive trade practices is based on the allegation that Defendants are "willfully `passing off' their TABOCA smokeless tobacco products"

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(Complaint ¶ 32); the fourth cause of action for common law trademark and trade name infringement is based on "Defendants' willful use of the TABOCA trade name and mark" (Complaint ¶ 36); the fifth cause of action for common law unfair competition is based on Defendants' "'passing off' of their TABOCA smokeless tobacco product" (Complaint ¶ 39); and the sixth cause of action for attorneys' fees is based on "Defendants' current bad faith use of the TABOCA trade name and mark in U.S. commerce" (Complaint ¶ 43). It is axiomatic that in order for Plaintiff to prove each such cause of action it necessarily must prove that Nordic American is using the TABOCA trade name and mark. Bosley Medical Institute Inc. v. Kremer, 74 USPQ2d 1280, 1284 (9th Cir. 2005), citing Prestonettes, Inc., v. Coty, 264 U.S. 359, 368 (1924); Optimum Technologies Inc. v. Hankel Consumer Adhesives Inc., 496 F.3d 1231, 1241-42 (11th Cir 2007) ("The first step of a trademark infringement action is to demonstrate an unauthorized `use' of the plaintiff's mark in commerce"). The Declaration of Darren Quinn indisputably establishes that Nordic American is not using the TABOCA trade name or mark in U.S. commerce, and therefore establishes an absence of evidence on this material fact necessary to each cause of action. Plaintiff must produce specific evidence to support its position that Nordic American is using the TABOCA trade name or mark in U.S. commerce. Plaintiff cannot produce such evidence and therefore Nordic American is entitled to judgment as a matter of law. Matsushita, 475 U.S. at 586 (1986) ("[T]he nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'") (Emphasis in original.)). See also Acad. of Motion Picture Arts & Sciences v. Network Solutions, Inc., 989 F. Supp. 1276, 1279 (C.D. Cal. 1997) ("There has been no allegation by the [Plaintiff] which supports a finding by the Court that [Defendant] has directly used any of their protected marks "in commerce". ... There is likewise no evidence that [Defendant] attaches the names to any 11
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goods or services that it sells. ... There has been no allegation that [Defendant exploits] the Academy's marks. Without such a showing, the use in commerce requirement is not met."). V. CONCLUSION

For the foregoing reasons, Nordic American respectfully requests that this Court dismiss Plaintiff's Complaint, and in the alternative, enter judgment in favor of Nordic American as a matter of law. Respectfully submitted,

Date: 4/15/08

/s/ Andrew S. Dupre David A. White (ID No. 2644) [email protected] Andrew S. Dupre (ID No. 4621) [email protected] Theodore W. Annos (ID No. 4823) [email protected] McCarter & English, LLP Renaissance Centre 405 N. King Street, 8th Floor Wilmington, DE 19801 302-984-6300 - Telephone 302-984-6399 - Facsimile Attorneys for Moving Defendant Nordic American Smokeless Inc.

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CERTIFICATE OF SERVICE

I, Andrew S. Dupre, attorney for Nordic American Smokeless, Inc., hereby certify that on April 15, 2008, a true and correct copy of the foregoing MEMORANUM IN SUPPORT OF DEFENDANT NORDIC AMERICAN SMOKELESS INC.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT OR, ALTERANTIVELY, MOTION FOR SUMMARY JUDGMENT was served electronic mail upon all counsel of record.

/s/ Andrew S. Dupre Andrew S. Dupre (ID No. 4621) Date: 4/15/08

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