SmileDirectClub LLC v. Fulop

MEMORANDUM AND ORDER   Jacqueline I. Fulop, D.M.D., P.C. (“Fulop P.C.”) and Jacqueline I. Fulop-Goodling (“Fulop-Goodling,” and, together with Fulop P.C., “defendants”) move to dismiss two of the eight claims in SmileDirectClub, LLC’s (“plaintiff”) amended complaint. The Court grants defendants’ motion for the reasons stated herein. BACKGROUND Plaintiff sells transparent mouthpieces called clear aligners that align teeth in lieu of traditional dental braces. See Am. Compl. 9. To sell its clear aligners, plaintiff operates hundreds of SmileShop retail stores at which customers obtain 3D images of their teeth and gums that plaintiff sends to dental practices with whom it has contracted. See Am. Compl.

9-10. A dentist or orthodontist who is employed by one of those dental practices and licensed in the customer’s state of residence then determines whether clear aligner treatment is appropriate for the customer and, if so, prescribes it. See Am. Compl. 10. Customers who are prescribed clear aligner treatment this way receive Smile Direct Club-branded clear aligners from plaintiff. Am. Compl. 10. If a customer cannot visit a SmileShop to obtain 3D images of their teeth, then he or she can purchase an impression kit from plaintiff’s website to create maxillary and mandibular molds of their teeth for plaintiff. See Am. Compl. 10. Plaintiff refers to its SmileShop employees as SmileGuides, and its customers can finance their purchase of its clear aligners using its SmilePay program. Am. Compl. 11. Plaintiff’s clear aligner treatment costs $1,895 — $2,290 if financed with SmilePay — and is approximately 60 percent to 70 percent cheaper than traditional orthodontic services. Am. Compl. 22. Plaintiff has registered or sought to register various marks with the United States Patent and Trademark Office, including “Smile Direct Club,” “SmileDirectClub,” and “SmileShop.” See Am. Compl., Exs. A, B, & C. Plaintiff maintains that it has used “Smile Direct Club,” “SmileShop,” “SmileGuide,” and “SmilePay” (collectively, the “Smile Marks”) continuously in commerce for several years. See Am. Compl.