         12-1787-cv
         Icebox-Scoops, Inc. v. Disney Enters., et al.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 22nd day of March, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                CHRISTOPHER F. DRONEY,
 8                           Circuit Judges,
 9                VINCENT L. BRICCETTI,
10                           Judge.*
11
12
13
14       ICEBOX-SCOOPS, INC.,
15
16                                     Plaintiff-Appellant,
17
18                      -v.-                                                12-1787-cv
19
20       DISNEY ENTERPRISES, INC.,
21       WALT DISNEY COMPANY,
22
23                                     Defendants-Appellees.
24
25
26       FOR APPELLANT:                MORRIS E. COHEN (Lee A. Goldberg,
27                                     Benjamin H. Graf, on the brief), Goldberg
28                                     Cohen LLP, New York, NY.
29

                *
                Judge Vincent L. Briccetti, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
1    FOR APPELLEES:    PASQUALE A. RAZZANO (Nina Shreve, on the
2                      brief), Fitzpatrick, Cella, Harper, &
3                      Scinto, New York, NY.
4
5         Appeal from the United States District Court for the
6    Eastern District of New York (Gershon, J.).
7
8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the order of the district court be

10   AFFIRMED.

11       Plaintiff-Appellant Icebox-Scoops, Inc. (“Icebox”)

12   appeals from the March 30, 2012 order of the United States

13   District Court for the Eastern District of New York

14   (Gershon, J.) dismissing its unjust enrichment claim as

15   implausible and denying its motion to amend the complaint as

16   futile.

17       Icebox obtained certain exclusive use rights to the

18   TINKERBELL® trademark (the “mark”) through a licensing

19   agreement with the mark’s owner, Finanz St. Honoré, B.V.

20   (“Finanz”), a Netherlands corporation.   Shortly thereafter,

21   Finanz terminated the license and sold all rights to the

22   mark to Defendants-Appellees Disney Enterprises, Inc. and

23   The Walt Disney Company (collectively, “Disney”) pursuant to

24   an agreement that required that the mark be transferred free

25   of any encumbrance.   Icebox then initiated this action.    We

26   assume the parties’ familiarity with the underlying facts,

27   the procedural history, and the issues presented for review.

                                   2
1        Although Icebox originally pled a claim for Disney’s

2    alleged tortious interference with the Finanz-Icebox

3    license, it has abandoned those claims and what remains is a

4    claim for unjust enrichment.      But, Icebox has not plausibly

5    asserted that it had conferred a benefit to Disney that

6    Disney unjustly retained.      As the district court noted,

7    Icebox “did nothing to enrich Disney or [for] Disney’s

8    benefit.”   Joint App’x 184.     We therefore affirm the

9    dismissal of the unjust enrichment claim for substantially

10   the same reasons.

11       We also affirm the denial of Icebox’s motion to amend

12   the complaint for substantially the same reasons as the

13   district court.     First, Icebox’s constructive-trust claim

14   fails because Icebox has not plausibly plead a need for this

15   equitable remedy.     See Simonds v. Simonds, 45 N.Y.2d 233,

16   241 (1978); see also Bankers Sec. Life Ins. Soc’y v.

17   Shakerdge, 49 N.Y.2d 939, 940 (1980).      Likewise, Icebox’s

18   declaratory-judgment claim fails because Icebox has not

19   plausibly asserted that it has a substantive claim to the

20   licensing rights it previously owned.      See In re Joint E. &

21   S. Dist. Asbestos Litig., 14 F.3d 726, 731 (2d Cir. 1993).

22   Second, Icebox has failed to assert a prima facie case for


                                      3
1    unfair competition or business practices under New York or

2    California law.   New York requires proof that Disney

3    misappropriated Icebox’s labors and expenditures, Saratoga

4    Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1044 (2d Cir.

5    1980); California requires proof that Disney engaged in

6    unlawful, unfair, or fraudulent business practices, Cal.

7    Bus. & Prof. Code § 17200.   Icebox has not plausibly plead

8    any of these elements.

9        Finally, we deny Disney’s motion as moot because we

10   affirm the district court’s disposition on the merits.

11       We have considered all of Icebox’s arguments on appeal

12   and find them to be without merit.   For the foregoing

13   reasons, the order of the district court is hereby AFFIRMED,

14   and Disney’s motion to supplement the record and to supply

15   supplemental briefing is DENIED as MOOT.

16
17                                FOR THE COURT:
18                                Catherine O’Hagan Wolfe, Clerk
19
20




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