          United States Court of Appeals
                     For the First Circuit

No. 14-1698

         NORBERTO-COLÓN LORENZANA; GLADYS GOZA-GONZÁLEZ;
                 CONJUGAL PARTNERSHIP COLÓN-GOZA,

                     Plaintiffs-Appellants,

                               v.

                SOUTH AMERICAN RESTAURANTS CORP.,

                       Defendant-Appellee,

  AFC ENTERPRISES INC.; CAJUN OPERATING COMPANY; CAJUN FUNDING
             CORP.; COMPANY A OF UNKNOWN; JOHN DOE,

                           Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Marcos E. López, U.S. Magistrate Judge]


                             Before

                      Howard, Chief Judge,
               Lynch and Kayatta, Circuit Judges.


     José R. Santiago-Pereles and Santiago-Pereles, Rinaldi &
Collazo, P.S.C. on brief for appellants.
     Ricardo F. Casellas, Diana Pérez Seda, Casellas Alcover &
Burgos, P.S.C., Dora M. Peñagarícano, and McConnell Valdés LLC on
brief for appellees.


                         August 21, 2015
           HOWARD, Chief Judge.      Crying foul over the trademarking

and continued sale of a chicken sandwich, plaintiffs-appellants

Norberto Colón Lorenzana and Gladys Goza González filed suit in

the United States District Court for the District of Puerto Rico.1

On appeal, Colón challenges the district court's order dismissing

the federal claims brought under the Lanham Act and Copyright Act,

and its declination of jurisdiction over the supplemental Puerto

Rico law claims.     See Colón-Lorenzana v. S. Am. Rest. Corp., 2014

WL 1794459 (D.P.R. May 6, 2014).          After careful review of the

record, we affirm on all fronts.

                                     I.

           We review the grant of a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) de novo, construing the

facts in a light most favorable to the non-moving party.            Lister

v. Bank of Am., 790 F.3d 20, 23 (1st Cir. 2015).               Our factual

analysis is based upon the relevant allegations contained within

the amended complaint.       Mass. Retirement Sys. v. CVS Caremark

Corp., 716 F.3d 229, 231 (1st Cir. 2013).

           In 1987, Norberto Colón Lorenzana began working for

South American Restaurant Corporation ("SARCO"), a franchisee and

operator   of   Church's   Chicken   locations   in   Puerto   Rico.    As


     1   The complaint is captioned "Norberto Colón Lorenzana,
Gladys Goza González, and their conjugal partnership." For the
sake of convenience, we will refer to both appellants generally as
"Colón".


                                  - 2 -
pertinent to this action, he suggested to his superiors the concept

for a new chicken sandwich that could be included on Church's menu.

Seizing upon Colón's idea, a series of taste tests were performed

that eventually culminated with Church's offering the item for

sale, beginning in December of 1991.        Colón christened this

creation the "Pechu Sandwich."2

           In 1999, wanting to protect its new item, the franchisor

of Church's Chicken applied for and received a certificate of

registration from the Puerto Rico Department of State trademarking

the name "Pechu Sandwich".   The Puerto Rico registration, after a

series of transfers, was eventually conferred on defendant SARCO.

In October of 2005, and concurrent to the active Puerto Rico

registration, SARCO filed an application with the United States

Patent and Trademark Office ("USPTO"), and received a federal

trademark registration for the name "Pechusandwich"3 in September

of 2006.




     2 The sandwich consists of a fried chicken breast patty,
lettuce, tomato, American cheese, and garlic mayonnaise on a bun.
     3 The term "Pechusandwich" appears at only three places in
the amended complaint, including in Colón's allegation related to
the issuance of the federal trademark. All other references in
the amended complaint are to "Pechu Sandwich". The record below
is silent as to whether this is a typographical error or the form
in which the federal trademark issued. For the purpose of clarity
we use "Pechu Sandwich".




                               - 3 -
          Believing that SARCO misappropriated his intellectual

property, Colón now claims that he is entitled to a percentage of

the profits derived from the Pechu Sandwich's success.   He brought

suit primarily alleging a violation of Section 38 of the Lanham

Act, see 15 U.S.C. § 1120, asserting that SARCO committed fraud

upon the USPTO in the procurement of the federal trademark for the

Pechu Sandwich.4

          After both parties consented to the matter being heard

before a magistrate judge, SARCO promptly filed a motion to dismiss

under Fed. R. Civ. P. 12(b)(6).     The district court, construing

the pleadings generously to Colón, also gleaned a claim for

violations of the Copyright Act5 and a second claim under the

Lanham Act of trademark infringement6 but nonetheless allowed the

motion in full.    This timely appeal followed.


     4 While neither party raises the issue, Colón's claim of
ownership may fail on the grounds that the Pechu Sandwich was
likely created within the scope of his employment. See J. Thomas
McCarthy McCarthy on Trademarks and Unfair Competition § 16:36
(4th ed.) ("If an employee designs a mark in the course of
employment and the employer uses it, it would seem clear that the
employer is the 'owner' of the mark.").
     5 The district court noted that "[t]he amended complaint does
not specifically plead a claim under, or cite to the U.S. Copyright
Act."   Colón more clearly asserts a Copyright Act claim in his
opposition to SARCO's motion to dismiss, and SARCO filed a reply
brief arguing that such a claim was waived.       Nonetheless, the
district court concluded the claim was adequately pled to warrant
analysis under Fed. R. Civ. P. 12(b)(6).
     6 Colón does not seize upon the generosity of the district
court and fails to develop any argument in his appellate briefing
related to trademark infringement.   Accordingly, any such claims


                                - 4 -
                                         II.

              We    first   determine     whether    any     violation    of    the

Copyright Act exists.           For a claim alleging a violation of the

Copyright Act to proceed past infancy, the "complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face."                Ashcroft v. Iqbal, 556

U.S.   662,    678    (2009)    (internal      citation   and    quotation     marks

omitted).      "If the factual allegations in the complaint are too

meager, vague, or conclusory to remove the possibility of relief

from the realm of mere conjecture, the complaint is open to

dismissal."        S.E.C. v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)

(en banc).

              Colón    claims    that   SARCO     violated      his   intellectual

property rights for both the "recipe" of the Pechu Sandwich and

the name of the item itself.              He asserts that the term Pechu

Sandwich is a creative work, of which he is the author.

              In assessing whether a work is suitable for copyright

protection, we are mindful that "[t]he immediate effect of our

copyright law is to secure a fair return for an 'author's' creative

labor [and] . . . the ultimate aim is . . . to stimulate artistic

creativity for the general public good."              Twentieth Century Music

Corp. v. Aiken, 422 U.S. 151, 156 (1975).                  Against this rubric,


are deemed waived. See, e.g., United States v. Oladosu, 744 F.3d
36, 39 (1st Cir. 2014).


                                        - 5 -
Congress has enumerated eight categories of works available for

copyright protection:

            (1) literary works; (2) musical works,
            including any accompanying words; (3) dramatic
            works, including any accompanying music; (4)
            pantomimes and choreographic works; (5)
            pictorial, graphic, and sculptural works; (6)
            motion pictures and other audiovisual works;
            (7) sound recordings; and (8) architectural
            works.

17 U.S.C. § 102(a).

            Contrary to Colón's protests on appeal, the district

court properly determined that a chicken sandwich is not eligible

for copyright protection.       This makes good sense; neither the

recipe nor the name Pechu Sandwich fits any of the eligible

categories and, therefore, protection under the Copyright Act is

unwarranted.     A recipe -- or any instructions -- listing the

combination of chicken, lettuce, tomato, cheese, and mayonnaise on

a bun to create a sandwich is quite plainly not a copyrightable

work.7   See 37 C.F.R. § 202.1(a) (the mere listing of ingredients

is not subject to copyright protection); see also Publ'ns Int'l

Ltd. v. Meredith Corp., 88 F.3d 473, 480-81 (7th Cir. 1996)

(explaining that recipes are functional directions to achieve a

result and therefore not copyrightable).           As for the "Pechu

Sandwich"    moniker,   we   have   previously   held   that   "copyright


     7 We note that the complaint contains no allegation that the
"recipe" for the Pechu Sandwich is in a form of expression beyond
that of a list.


                                    - 6 -
protection simply does not extend to 'words and short phrases,

such as names, titles, and slogans.'" CMM Cable Rep, Inc. v. Ocean

Coast Props., Inc., 97 F.3d 1504, 1520 (1st Cir. 1996) (quoting 37

C.F.R. § 202.1(a)).     Colón has not articulated any reason for

deviating from that sound guidance here.

          Thus, because neither the name "Pechu Sandwich" nor the

recipe are eligible for copyright protection, no violation of the

Copyright Act exists.

                               III.

          We next pivot to the meat of Colón's allegations and

evaluate whether he has pled sufficient facts to state a claim for

fraud in the procurement of a federal trademark.     The district

court determined that a claim under Section 38 of the Lanham Act

must sufficiently plead: (1) that the registrant (SARCO) made a

false representation to the USPTO regarding a material fact; (2)

that the petitioner knew or should have known the representation

was false; (3) that the petitioner intended to induce the USPTO to

act or refrain from acting based upon such representation; (4)

that the USPTO reasonably relied on the misrepresentation; and (5)

that some damage was proximately caused by the USPTO's reliance on

the false material fact.     See J. Thomas McCarthy, McCarthy on

Trademarks and Unfair Competition § 31:61 (6th ed. 2015).   These

criteria have been adopted in some form by other circuits and

applied by district courts within our circuit. See, e.g., Patsy's


                              - 7 -
Italian Rest., Inc. v. Banas, 658 F.3d 254, 270-71 (2d Cir. 2011);

Robi v. Five Platters, Inc., 918 F.2d 1439, 1444 (9th Cir. 1990);

San Juan Prods., Inc. v. San Juan Pools of Kansas, Inc., 849 F.2d

468, 473 (10th Cir. 1988); Bay State Sav. Bank v. Bay State Fin.

Servs., 484 F. Supp. 2d 205, 221 (D. Mass. 2007); Gen. Linen Serv.,

Inc. v. Gen. Linen Serv. Co., Inc., 25 F. Supp. 3d 187, 191 (D.N.H.

2014); Clark Cap. Mgmt. v. Navigator Invs., LLC, 2014 WL 6977601

at *1 (D.R.I. 2014).

           In analyzing the amended complaint, the district court

measured   Colón's   claim   under   15   U.S.C.   §   1120   against   the

heightened standards of Fed. R. Civ. P. 9(b).          To the extent that

Colón presses any discernible argument against the application of

Rule 9(b), he only refers in passing to a district court case

stating that "Twombly does not require heightened fact pleading of

specifics."   Torres v. Bella Vista Hosp., Inc., 523 F. Supp. 2d

123, 132-33 (D.P.R. 2007) (citing United States v. Twombly, 550

U.S. 544, 559 (2007)).

           We need not linger over the potential elements of a

Section 38 claim or the application of Rule 9(b) because the

complaint fails for a more fundamental reason.         It simply fails to

sufficiently allege that any false statement exists.          Colón merely

offers conjecture about SARCO's actions and intentions.          He avers

that SARCO "intentionally, willfully, fraudulently and maliciously

procured the registration of Plaintiff's creation in the Patent


                                 - 8 -
and Trademark Office without his consent and . . . with the intent

to injure the Plaintiffs," but the complaint is silent as to any

facts to support such conclusions.           Even applying the more lenient

provisions of Fed. R. Civ. P. 8, courts "do not unlock the doors

of   discovery    for   a    plaintiff    armed   with   nothing     more    than

conclusions."     Iqbal 556 U.S. at 678-79.        Instead, "[a] claim has

facial plausibility when the plaintiff pleads factual contact that

allows    the   court   to   draw   the   reasonable     inference    that   the

defendant is liable for the misconduct alleged."                   Id. (citing

Twombly, 550 U.S. at 556).          Colón's complaint allows for no such

inference.

             Thus, Colón has failed to sufficiently plead that SARCO

committed fraud in the procurement of a federal trademark for the

Pechu Sandwich.8

                                      IV.

             The judgment of the district court is affirmed.




      8Because the district court properly dismissed the federal
claims, it was well within the district court's discretion to
relinquish the supplemental claims brought under Puerto Rico law.
See Ortiz-Rivera v. Astra Zeneca LP, 363 F. App'x 45, 48 (1st Cir.
2010); 28 U.S.C. § 1367(c)(3).


                                     - 9 -
