United States District Court, M.D. Tennessee, Nashville Division
HOLMES, MAGISTRATE JUDGE
WILLIAM L. CAMPBELL, JR., UNITED STATES DISTRICT JUDGE
before the Court is Defendant SquareTrade, Inc.'s Motion
to Dismiss Complaint of Plaintiff Asurion LLC (Doc. No. 30).
Asurion filed a memorandum in opposition to the motion (Doc.
No. 38) and SquareTrade filed a reply (Doc. No. 45).
Defendant SquareTrade also filed a Request for Judicial
Notice of three printouts of online promotional materials
from other companies (Doc. No. 32). For the following
reasons, the request to take judicial notice of matters
outside the pleadings is DENIED, and the motion to dismiss is
and SquareTrade are direct competitors in the provision of
extended warranties for mobile phones. Asurion offers what it
calls “mobile phone insurance, ” which covers
damage and failures, and also provides coverage for theft and
loss. (Id. ¶ 19.) Asurion's mobile phone
insurance is available for purchase from wireless carriers
such as AT&T, Sprint, and Verizon. (Id. ¶
4.) Typically, the wireless carriers bundle Asurion's
mobile phone insurance with an extended warranty and
technical support and sell the combined “Carrier
Protection Plan” to customers at a single price.
(Id.) SquareTrade sells an extended warranty it
refers to as a “Protection Plan.” The Protection
Plan provides protection against defects and accidental
damages for a variety of consumer products, including cell
phones, but does not cover products for theft or loss.
(Id. ¶¶ 5, 15, 20; Def. Br., Doc. No. 31
distinguishing feature between Asurion's mobile phone
insurance and SquareTrade's Protection Plan, appears to
be that Asurion's mobile phone insurance provides
coverage for theft and loss and SquareTrade's does not.
(Id. ¶¶ 3-5.) As compared with the bundled
Carrier Protection Plan, SquareTrade's Protection Plan
provides less coverage because it does not cover theft or
loss and does not include the technical support that comes
with the Carrier Protection Plans. (Id. ¶¶
allegations concern the following SquareTrade advertisements:
Doc. No. 1, ¶ 15.) The fine print in both advertisements
All plans are continuous until cancelled. A $25-149
deductible applies per claim. Price comparisons based on
smart phone protection for the following providers:
SquareTrade Smartphone Protection Plan, Sprint Total
Equipment Protection Plus, T-Mobile Premium Device Protection
Plus, Verizon Total Mobile Protection, AT&T Mobile
Protection Pack. Prices and terms are as of 08/01/2018 and
may change. SquareTrade plans do not cover loss or theft.
Refer to SquareTrade's Terms & Conditions.
complains that the side-by-side comparison in the
advertisements falsely and misleadingly implies that
SquareTrade offers coverage equivalent to the Carrier
Protection Plans for a lower price. (Compl., Doc. No. 1
¶ 6.) Asurion further argues that using the name of its
affiliate, Allstate, in the online advertisement misleadingly
implies SquareTrade offers insurance (i.e. theft and loss
protection). Asurion brings claims for false advertising
under Section 43(a) of the Trademark Act of 1946 (the
“Lanham Act”), 15 U.S.C. § 1125(a) and for
violations of the Tennessee Consumer Protection Act