etrating a market with allegedly high barriers to entry. See ¶¶ 53–63. Because we find that these allegations sufficiently allege exclusionary power, MAJ’s motion to dismiss the counterclaim on this basis must be denied as well.
Antitrust Injury.
MAJ next asserts that the antitrust claims are inadequate because Peacock has failed to allege an antitrust injury. In support of this contention, MAJ contends that Peacock has not specified a single customer or sale lost as a result of MAJ’s alleged conduct, and again argues that Peacock cannot possibly be injured by its possession of thirteen copyrights when the potential number of charm designs is infinite.
As discussed above, the requirement of an antitrust injury compels Peacock to demonstrate more than mere causal injury to its business or property. It must also demonstrate that any injury it sustained is
of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anticompetitive acts made possible by the violation. It should, in short, be “the type of loss that the claimed violations … would be likely to cause.”
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. at 489, 97 S.Ct. at 697 (citation omitted). Despite the stringency of this requirement, we find that Peacock’s allegations—read in their most favorable light—state an injury under the antitrust laws.
The amended pleading identifies several potential sources of such injury. First and foremost, Peacock contends that it suffered an injury in the form of defending itself against this allegedly bad faith copyright litigation. Second, Peacock alleges that MAJ’s practice of securing and enforcing copyrights in public domain charms prevented it from entering a market that would otherwise have been more open.[1] See ¶ 160. Because such injuries, if proved, would flow from the very monopolistic conduct that is unlawful under the antitrust laws, they are sufficient to allege antitrust injury.[2]
The Noerr–Pennington Doctrine.
In addition to challenging the above elements of the antitrust claims, MAJ argues that this litigation is non-sham as a “matter of law” and therefore should not be considered as evidence of exclusionary conduct. See MAJ’s Supplemental Memorandum of Law in Support of Motion to Dismiss at 7. In support of that assertion, MAJ argues that it initiated this action in a valid effort to enforce its trademark rights, and that even if the copyright claims were later added in bad faith, its resort to the judicial process is protected under the Noerr–Pennington doctrine.
The Noerr–Pennington doctrine developed in a trilogy of Supreme Court cases that explored the tension between the Sherman Act and the first amendment rights to petition and association. In Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), the Court held that efforts to influence legislative or executive action were immune from federal antitrust liability, even if intended to eliminate competition. In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), the Supreme Court extended that immunity from antitrust liability to the administrative and judicial processes.
- ↑ Because MAJ’s copyright registrations apparently did not deter Peacock from marketing the charm designs it acquired from the Old Mr. Craftsman, we assume that MAJ’s allegations regarding its reluctance to enter the market refer to MAJ’s practice of fraudulently obtaining copyrights in other public domain works. See, e.g., ¶¶ 99, 101, 145 (referring to the copying and copyrighting of charms copied from other competitors).
- ↑ Peacock also suggests that it was injured because MAJ’s placement of a copyright notice on its charms may have deterred customers from purchasing Peacock’s charms out of a belief that the latter charms were infringing. See ¶ 148. Because, as we discuss in Section 3 infra, Peacock has failed to allege that MAJ’s copyright notice was even visible to potential customers, this allegation of injury is inadequate as currently pleaded.
