KANSAS CITY – A count of allegations of unfair and deceptive business practices has been dismissed in a suit over the advertising of spa products.
Judge Stephen Bough of the U.S. District Court for the Western District of Missouri in the Western Division granted in part and denied in part defendant KDS Nail Products' motion to dismiss, motion to strike, or in alternative motion for a more definite statement. The judge ruled on the case April 30.
Ma Vin Dhat, doing business as KDS, filed the motion in January in response to Millenia Productions LLC’s trademark infringement and unfair competition lawsuit against KDS. That motion was partially granted in March, and Millenia filed an amended complaint.
KDS filed a motion to dismiss Millenia’s unfair and deceptive trade practices claim, count four of the amended complaint, which had already been dismissed in March. While Millenia agreed that it was dismissed, it said it didn’t understand the order meant it needed to omit the claim completely.
“Given that this claim has already been dismissed without prejudice, KDS’s motion to dismiss count four is again granted without prejudice to Millenia’s ability to seek leave of court to amend the complaint in the future,” said Bough wrote.
Bough added that Millenia isn’t required to file a new complaint without count four.
Bough did deny KDS’s motion to dismiss count five, or the common law trademark and unfair competition allegations. KDS argued that the count should be dismissed because Millenia did not specify "under which state's common law it is proceeding," the ruling states.
Millenia cited Missouri common law, providing photos it took of KDS' allegedly infringing packaging that was taken in Kansas City, the ruling states. Bough denied to dismiss the trademark and unfair competition allegations.
The judge also denied KDS’ motion to strike Millenia’s request for punitive damages.
“Millenia’s common law trademark infringement and unfair competition claim, which survives the instant motion to dismiss, supports an award of punitive damages,” Bough said.