Evolution Nutraceuticals Incorporated v. ThermoLife International LLC

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Evolution Nutraceuticals Incorporated,
Plaintiff,
v.
ThermoLife International LLC,
Defendant.
No. CV-25-00461-PHX-DJH
ORDER
On May 21, 2025, Defendant ThermoLife International LLC (“Defendant”) moved
to dismiss Counts III–VII of Plaintiff’s Complaint for failure to state a claim under Rule
12(b)(6). (Doc. 24). Plaintiff Evolution Nutraceuticals Inc. (“Plaintiff”) filed a Response
in Opposition (Doc. 46), and Defendant filed a Reply. (Doc. 49).1
I. Background
Plaintiff produces dietary supplement products to stimulate safe, sustained nitric
oxide in the body’s vasculature. (Doc. 1 at ¶ 21). Defendant is a raw material supplier for
dietary supplements, holding multiple patents, including the one at issue here—U.S. Patent
No. 8,455,531 (’531 Patent). (Id. at ¶¶ 25–26). The ’531 Patent is directed to nitrate-
containing amino acid compositions and their use in a human or animal for increasing
bioabsorption of amino acids or vasodilative characteristics. (Doc. 1-1 at 1). While this
case primarily arises from the parties’ dispute as to whether the ’531 Patent was infringed
1 Plaintiff’s Motion for Preliminary Injunction (Doc. 83), which seeks injunctive relief for
claims not at issue in the Motion to Dismiss, is also pending before the Court and will be
addressed by separate Order. The resolution of Defendant’s Motion to Dismiss does not
impact Plaintiff’s Motion for Preliminary Injunction.
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or is valid, the events preceding Plaintiff filing suit are relevant here.
Plaintiff has manufactured and sold its dietary supplements since 2013. (Doc. 1 at
¶ 21). These dietary supplement products are sold on a “variety of online platforms,”
including Amazon.com. (Id. at ¶ 23). On Amazon.com, the at-issue products were sold
under the Amazon Standard Identification Numbers (“ASINs”): B071T51TWY,
B0CWW3GD39, and B01H6BTRFO (the “Accused Products”). (Id.) Plaintiff claims that
its Amazon sales accounted for roughly 20% of the Accused Products’ total sales. (Id. at
¶ 23).
In October of 2024, Defendant filed one or more complaints (“Takedown Notices”)
with Amazon claiming that the Accused Products infringed on its patented nitrate and
requesting that Amazon remove the Accused Products’ listings. (Id. at ¶¶ 4–5). Amazon,
consequently, sent Plaintiff Policy Violation Notices, and the Accused Products’ listings
were deactivated. (Id. at ¶¶ 4, 81). Plaintiff alleges that Defendant’s Takedown Notices
were made in bad faith because Defendant “failed to conduct any proper testing to confirm
that Accused Supplemental Compositions comprise the required effective amount of nitrate
and not de minimis amounts of nitrate, if any.” (Id. at ¶ 5). Plaintiff further asserts that
“[Defendant] could have no reasonable belief that the ’531 Patent is both valid and
infringed by the Accused Products.” (Id. at ¶ 74).
Following the removal of the Accused Products, Plaintiff sent two non-infringement
letters to Amazon and asked for the listings to be restored. (Id. at ¶¶ 31–32). When the
attempts were unsuccessful, Plaintiff brought this action against Defendant on February
12, 2025. Plaintiff’s claims include declaratory judgment of non-infringement of the ’531
Patent, declaratory judgment of invalidity of the ’531 Patent, violation of the Arizona
Consumer Fraud Act (“ACFA”), trade libel, false or misleading representation and product
disparagement under 15 U.S.C. § 1125, tortious interference, and bad faith infringement
under the Arizona Patent Troll Prevention Act (“APTA”). (Id. at ¶¶ 88–155). Plaintiff
claims that the removal of its products from Amazon has caused it lost sales, loss of
customer goodwill, and damage to its rankings. (See id. at ¶¶ 78–84). Defendant now
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moves to dismiss five of Plaintiff’s tort claims, arguing that they each fail as a matter of
law.
II. Legal Standard
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim.
Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and
plain statement showing that the pleader is entitled to relief for its claims.
Fed. R. Civ. P. 8(a)(2). This standard does not require “‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). There must be “more than a sheer possibility that a defendant has acted
unlawfully.” Id. A plaintiff must allege facts sufficient to “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. A complaint must “state a claim to relief
that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.”
Id. at 679.
Dismissal of a complaint for failure to state a claim may be based on either the “lack
of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In
reviewing a motion to dismiss, courts will “accept factual allegations in the complaint as
true and construe the pleadings in the light most favorable to the nonmoving party.”
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But
courts are not required “to accept as true a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
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III. Discussion
Defendant moves to dismiss Plaintiff’s claims for unlawful practices under the
ACFA, trade libel, false or misleading representation and product disparagement under 15
U.S.C. § 1125, tortious interference, and bad faith infringement under the APTA.
(See Doc. 24 at ¶¶ 104–155).
A. Contradicted Allegations and Federal Preemption
To begin, Defendant contends dismissal is warranted because the allegations of the
Complaint contradict the asserted bases for Counts III through VII—namely, that
Defendant allegedly failed to conduct testing prior to submitting takedown notices for the
Accused Products to Amazon. (Doc. 24 at 10–12). Defendant also argues that Plaintiff’s
state law claims are preempted by federal patent law. (Id. at10–14).
1. Failure to Test
Defendant first argues that Plaintiff’s Counts III through VII fail to state viable
claims because they are all premised on the allegation that Defendant filed its Takedown
Notices without first testing the Accused Products. Defendant asserts that this premise is
contradicted by Plaintiff’s own statements made in a letter to Amazon about the takedowns,
which Plaintiff attached as an exhibit to its Complaint. (Id. at 5–7). “When exhibits are
attached to a complaint, the exhibits are deemed part of the complaint for all purposes,
including for purposes of determining the sufficiency of the claims.” Angelone v. Brown,
2024 WL 4610558, *2 (E.D. Wash. 2024).
The Complaint, on several occasions, asserts that “[Defendant’s] Takedown Notices
were in bad faith and unjustified. The ’531 Patent is not infringed because [Defendant]
failed to conduct any proper testing to confirm that Accused Supplemental Compositions
comprise the required effective amount of nitrate and not de minimis amounts of nitrate, if
any.” (Doc. 1 at ¶ 5; see, e.g., id. at ¶¶ 54, 106, 113, 152). Plaintiff’s correspondence with
Amazon, however, states: “[Defendant] submitted that [sic] Takedown Notices with full
knowledge that its own testing of the Accused Products showed nitrate amounts that it had
already argued before the U.S. PTO were de minimis and did not satisfy the nitrate
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limitations of the ’531 Patent.” (Doc. 1-5 at 5) (emphasis added).
To the extent Plaintiff alleges that Defendant conducted no testing prior to
submitting takedown notices to Amazon, the Court agrees with Defendant that the
statements in Plaintiff’s letter is at odds with those allegations. It accordingly need not
credit any allegations that Defendant failed to test the Accused Products at all. Angelone,
2024 WL 4610558 at *2 (“If an exhibit attached to a complaint contradicts an assertion in
the complaint and reveals information that prohibits recovery as a matter of law, the
information provided in the exhibit trumps the allegation in the complaint.”); Bronson v.
Green Tree Servicing, LLC, 2009 WL 546159, *8 (E.D. Cal. 2009) (“When an exhibit
contradicts facts alleged in the complaint, the facts in the exhibit take precedence.”).
Plaintiff highlights that it alleged that Defendant “failed to conduct any proper
testing” as opposed to no testing at all. (See Doc. 46 at 4; Doc. 1 at ¶ 5). However, this
distinction is immaterial because Plaintiff’s Exhibit says that Defendant had full
knowledge, based on its testing, that the Accused Products were non-infringing. (See Doc.
1-5 at 5). So, whatever testing Defendant conducted was sufficient to provide it with the
necessary knowledge about the Accused Products’ infringement status.
That said, construing the Complaint in the light most favorable to Plaintiff, the Court
finds that Plaintiff alleges sufficient alternative grounds for its claims. Notwithstanding
any allegations of no testing or no “proper” testing of the Products, the Complaint states:
[P]rior to submitting the Takedown Notices, [Defendant] knew that the
claims of the ’531 Patent are invalid if they are broad enough to read on a
supplement merely containing amino acids and trace nitrate present from
vegetables. As a result, [Defendant] could have no reasonable belief that the
’531 Patent is both valid and infringed by the Accused Products.
[Defendant’s] Takedown Notices were therefore in bad faith and objectively
baseless.
(Doc. 1 at ¶¶ 73–74). These allegations, taken as true, establish that Defendant knew the
Accused Products did not infringe its ’531 Patent yet still filed its Takedown Notices to
Amazon. Indeed, similar claims in the Complaint reassert that Defendant knowingly
submitted false claims of infringement against the Accused Product. (See, e.g., id. at
¶¶ 114, 146). Plaintiff’s assertions that Defendant knowingly raised false infringement
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claims provide a basis for its Counts III through VII and incidentally align with its
communication with Amazon. (Doc. 1-5 at 5 (“[Defendant] submitted that [sic] Takedown
Notices with full knowledge that its own testing of the Accused Products…did not satisfy
the nitrate limitations of the ’531 Patent.”). As a result, the Court declines to dismiss
Plaintiff’s claims on the grounds that the Complaint cannot assert Defendant failed to
conduct testing before submitting its takedown notices to Amazon.
2. Federal Preemption of State Law Claims
Defendant also argues that Plaintiff’s state law claims are preempted by federal
patent law. (Doc. 24 at 12–14).
“Federal Circuit law governs whether federal patent law preempts a state law
claim.” Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1376 (Fed. Cir.
2005). And the Federal Circuit has held that federal patent law preempts state tort law
where the state tort is based on “conduct that is protected or governed by federal patent
law.” Hunter Douglas, Inc. v. Harmonic Design, Inc., 153 F.3d 1318, 1335 (Fed. Cir.
1998), overruled on other grounds by Midwest Indus., Inc. v. Karayan Trailers, Inc., 175
F.3d 1356, 1358-59 (Fed. Cir. 1999). “[I]n a case involving a patentholder’s conduct
in…publicizing its patent, if the plaintiff were to fail to allege that the defendant
patentholder was guilty of…bad faith in the publication of a patent, then the complaint
would be dismissed” on preemption grounds. Id. at 1336. Federal patent law, similarly,
“preempt[s] state laws that impose tort liability for a patentholder’s good faith conduct in
communications asserting infringement of its patent and warning about potential
litigation.” Globetrotter Software, Inc. v. Elan Comput. Grp., Inc., 362 F.3d 1367, 1377
(Fed. Cir. 2004). As a result, “bad faith must be alleged and ultimately proven, even if bad
faith is not otherwise an element of the tort claim.” Zenith Elecs. Corp. v. Exzec, Inc., 182
F.3d 1340, 1355 (Fed. Cir. 1999).
Defendant asserts that Plaintiff cannot sufficiently allege that the Takedown Notices
were made in bad faith because Defendant tested the accused products prior to submitting
them. But Plaintiff has alleged the falsity of Defendant’s Takedown Notices by alleging
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that Defendant submitted its Takedown Notices with the knowledge that the Accused
Products did not actually infringe its patent. (Doc. 1 at ¶¶ 73–74). Moreover, Plaintiff
states that Defendant’s goal in submitting its Notices was to force Plaintiff to pay
Defendant “undeserved ‘royalty’ payments,” buttressing the inference of bad faith. (Id. at
¶ 7). Presently, Plaintiff has demonstrated the requisite bad faith to avoid federal
preemption.
B. California Litigation Privilege
Defendant next claims that the California litigation privilege “protects the Amazon
Takedown [N]otices from Arizona tort law because they were drafted and sent from
California.” (Doc. 24 at 14). The Court does not reach the substance of Defendant’s
argument because it would require the Court to consider information outside of the
Complaint. Nowhere in the Complaint does it establish where Defendant drafted and sent
the Notices from, and, on a motion to dismiss, review is limited to the contents of the
complaint. See Enesco Corp. v. Price/Costco, Inc., 146 F.3d 1083, 1085 (9th Cir. 1998).
C. Sufficiency of Plaintiff’s Claims
Notwithstanding its foregoing arguments, Defendant argues that each of Plaintiff’s
claims fails as a matter of law. (Doc. 24 at 14). The Court will examine each claim in turn.
1. ACFA Claim
Defendant argues that Plaintiff failed to allege essential elements of an ACFA claim.
(Id. at 15). Specifically, Defendant argues that the Complaint does not assert that Plaintiff
was a consumer under the ACFA. (Id. at 15–16). The Court agrees.
The ACFA widely prohibits fraudulent, deceptive, or misleading conduct “in
connection with the sale or advertisement of any merchandise….” A.R.S. § 44-1522(A).
“The elements of a private cause of action for statutory fraud are a false promise or
misrepresentation made in connection with the sale or advertisement of merchandise and
the hearer’s consequent and proximate injury.” Parks v. Macro-Dynamics, Inc., 591 P.2d
1005, 1008 (Ariz. Ct. App. 1979).
A private right of action under the ACFA was recognized in Sellinger v. Freeway
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Mobile Home Sales, Inc., 521 P.2d 1119, 1122 (Ariz. 1974). Although not explicitly
accounted for in the ACFA, the court determined that the a private cause of action was
granted by § 44-1533(B), which reads “[t]he provisions of this article shall not bar any
claim against any person who has acquired any monies or property, real or personal, by
means of any practice declared to be unlawful by this article.” Id.; A.R.S. § 44-1533(B).
The court reasoned that this section allowed a person damaged by unlawful acts to bring a
claim based on those acts, and it noted “similar language in a consumer fraud act is
sufficient recognition that a cause of action has been created in favor of the consumer.” Id.
(citing Rice v. Snarlin, Inc., 266 N.E.2d 183 (Ill. App. Ct. 1970)). A private right of action
was recognized for those who fell within the class that the statute was intended to protect—
namely, consumers. Id.
Plaintiff contends that a “direct merchant-consumer transaction” is not required to
state a claim under the ACFA. (Doc. 11). Watts v. Medicis Pharm. Corp., 365 P.3d 944,
953 (Ariz. 2016) (“[T]he statute does not expressly require a direct merchant-consumer
transaction.”). Be that as it may, Watts does not stand for the premise that a plaintiff need
not be a consumer. Watts involved a defendant pharmaceuticals manufacturer and a
plaintiff patient. Watts, 365 P.3d at 953. While the court recognized that an ACFA claim
could still be brought even without a direct transaction between a drug manufacturer and a
patient, the Watts plaintiff was still a consumer of the defendant’s pharmaceuticals. See
id. at 947-48. Ultimately, to bring a claim of consumer fraud, Plaintiff must be a consumer.
See, e.g., Holeman v. Neils, 803 F. Supp. 237, 242 (D. Ariz. 1992) (“The Consumer Fraud
Act provides an injured consumer with an implied private right of action against the
violator of the act.”) (emphasis added). In other words, a consumer protection statute is
intended to protect consumers.
In its Complaint, Plaintiff does not allege that it is a consumer, nor can this be
inferred from the four corners of the pleading. (See generally Doc. 1). Even more so, as
the manufacturer of the Accused Products, Plaintiff is empirically not bringing this suit as
an injured consumer and does not fall within the class that the ACFA is intended to protect.
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No possible amendment could alter this reality. Accordingly, Plaintiff’s ACFA claim will
be dismissed with prejudice.
2. Trade Libel
Defendant also contends Plaintiff’s trade libel claim fails as it is based on an
unactionable opinion and the alleged statements do not concern the quality of Plaintiff’s
Products. (Doc. 24 at 12–14).
Under Arizona law, “trade libel involves ‘the intentional publication of an injurious
falsehood disparaging the quality of another’s property with resulting pecuniary loss.’ ”
Vazirani v. Annexus Distributors AZ, LLC, 2017 WL 443529, *10 (Ariz. Ct. App. 2017)
(quoting Gee v. Pima Cnty., 612 P.2d 1079, 1079 (Ariz. Ct. App. 1980)); see also
ZombieBox Intl. Inc. v. Generac Power Sys. Inc., 721 F. Supp. 3d 798, 804 (D. Ariz. 2024)
(The elements of a trade libel claim in Arizona are: (1) intentional publication; (2) of an
injurious falsehood; (3) disparaging the quality of another’s property; (4) resulting in
pecuniary loss.”).
Here, Plaintiff’s trade libel claim is premised upon Defendant’s Takedown Notices
sent to Amazon. Plaintiff asserts that “[Defendant] communicated a falsehood to third-
party Amazon when it submitted the Takedown Notices of infringement because the ’531
Patent is not infringed by the Accused Products and [Defendant] did not conduct any due
diligence to test the Accused Product to show the ’531 Patent was in fact infringed at the
time it submitted its Takedown Notices.” (Doc. 1 at ¶ 113). It additionally alleges that
Defendant “knew of its prior statements and expert declaration submitted to the USPTO,
admitting that the presence of no or de minimis nitrates at the level found in the Accused
Products, did not satisfy the nitrate limitations for purposes of alleged infringement.” (Id.
at ¶ 114). Nonetheless, “[Defendant’s] Takedown Notices referred to [Plaintiff] and its
products and clearly derogated those products by stating that the products infringe and
should be delisted from Amazon, when those products, in fact, do not infringe.” (Id. at
¶ 115). Plaintiff claims that this falsehood caused it substantial damages. (See id. at ¶¶
117–121).
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a. Statement of Opinion
First, Defendant argues that its statements to Amazon that the Accused Products
infringed Defendant’s Patent are opinions, which are not actionable as trade libel. (Doc. 24
at 12–13). In support of its argument, Defendant cites several Ninth Circuit cases that
establish that claims of intellectual property (“IP”) infringement are not facts until proven
in court. See, e.g., Trevari Media, LLC v. Colasse, 758 F. Supp. 3d 1175, 1182 (C.D. Cal.
2024) (“Given the legal complexity in determining IP validity and infringement…the court
finds the validity or infringement of IP only becomes a provable ‘fact’ when a final,
unappealable decision has been rendered.”); HGCI, Inc. v. Luxx Lighting, Inc., 2020 WL
5913851, *4 (C.D. Cal. 2020) (“The Email stated that [plaintiff] ‘believe[d] [defendant]
infringed on our patents for our optics, which is why we're currently in this situation.’ The
Court finds that this statement is a non-actionable opinion[.]”) (internal citations omitted).
Although Defendant only provides authority premised on California law, it notes that
California’s definition of trade libel claim is substantially similar to Arizona’s. Nichols v.
Great Am. Ins. Companies, 215 Cal. Rptr. 416, 419 (Cal. App. 3d Dist. 1985) (defining
trade libel as “an intentional disparagement of the quality of property, which results in
pecuniary damage to plaintiff”).
Defendant’s authority is not altogether unpersuasive, and no Arizona court has
opined on the ability of IP infringement statements to support a trade libel or any related
claim. However, concluding that Defendant’s statements were opinions is premature. At
least regarding defamation, it has been established that “[w]hile statements cast as
subjective beliefs are generally insulated from defamation liability, statements of opinion
are actionable when they imply a false assertion of fact.” Takieh v. O’Meara, 497 P.3d
1000, 1006 (Ariz. Ct. App. 2021) (citation omitted). Because the Court presently does not
have the benefit of seeing Defendant’s statements to Amazon, it is unable to ascertain
whether the statements constitute facts or opinions. The Court will not go so far as to say
that every assertion of IP infringement is a non-actionable opinion and therefore will not
dismiss Plaintiff’s trade libel claim on this basis.
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b. Quality of Product
Defendant additionally argues that Plaintiff’s trade libel claim fails because it does
not allege that Defendant disparaged the quality of the Accused Products. Plaintiff
disagrees and says that “it successfully alleges the disappearance of Cardio Miracle’s
listings (replaced by derogatory insinuation that the products were a “dog”), sudden
shutdown of its subscription plan, and plunge in Amazon rankings and reputation.” (Doc.
46 at 13).2 While Plaintiff alleges the intentional publication of an injurious falsehood
resulting in damages, the falsehood alleged does not disparage the “quality” of its products.
See Gee, 612 P.2d at 1079 (“[T]he disparagement in the trade libel goes to the quality of
property, rather than title.”).
Statements that products were “structurally unsound” or had poor workmanship
speak to the quality of property. Atlatl Group LLC v. Unknown Parties, 2023 WL 2596100,
*3 (D. Ariz. 2023). See also ZombieBox, 721 F. Supp. 3d at 804–05 (statements that the
plaintiff’s product “void[ed] a generator’s warranty;” was a “generator murder box;” and
was “dangerous, damage[d] generators, and void[ed] warranties” supported a trade libel
claim). Here, the only alleged falsehood is Defendant’s statement that the Accused
Products infringed the ’531 Patent. (Doc. 1 at ¶ 115). This statement does not comment
on, for example, the safety, soundness, or effectiveness of the Accused Products and
instead raises questions about the product’s title. Failing to make such allegations, Plaintiff
does not adequately allege the disparagement of the quality of property. See, e.g., Morley
v. Smith, 2007 WL 1876382, *2 (D. Ariz. 2007) (“Plaintiffs’ attempt to include in this
claim other allegedly defamatory statements regarding the Mafia and ‘running from the
law’ will be rejected. Neither comment disparages the quality of the plaintiff’s property
2 Plaintiff claims that when its listings were removed from Amazon they were “replaced
by a derogatory ‘dog’ and with it the insinuation that the product was unreliable or poor
quality[.]” (Doc. 46 at 13; see also id. at 12). Plaintiff includes a picture of the dog in its
Response. (See id. at 11). But the Complaint itself has no allegations about a “derogatory”
dog replacing the Accused Product’s links. (See generally Doc. 1). Even assuming an
error page with a picture of a dog could plausibly be construed as a derogatory statement
about the Accused Products, Plaintiff’s position in its Response must be disregarded
because “a complaint cannot be amended by an opposition to a motion to dismiss.”
Nationstar Mortgage LLC v. Presley, 2021 WL 3164974, *4 (E.D. Cal. 2021).
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and therefore cannot form the basis for a trade libel claim.”). Accordingly, Plaintiff’s trade
libel claim is dismissed without prejudice.
3. False or Misleading Representation under the Lanham Act
Plaintiff maintains that it has sufficiently alleged a false advertising claim under 15
U.S.C. § 1125(a).3 To state a Lanham Act false-advertising claim, a plaintiff must show:
“(1) a false statement of fact by the defendant in a commercial advertisement about its own
or another's product; (2) the statement actually deceived or has the tendency to deceive a
substantial segment of its audience; (3) the deception is material, in that it is likely to
influence the purchasing decision; (4) the defendant caused its false statement to enter
interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of
the false statement, either by direct diversion of sales from itself to defendant or by a
lessening of the goodwill associated with its products.” Southland Sod Farms v. Stover
Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997).
Plaintiff alleges that Defendant “knowingly made false, misleading, disparaging and
defamatory statements in commerce through the Takedown Notices to Amazon relating to
[Plaintiff’s] Supplements.” (Doc. 1 at ¶ 129). And it further asserts that “[t]hese statements
actually deceived Amazon and are likely to deceive and confuse the public (i.e., Amazon’s
marketplace users) into believing that [Plaintiff’s] products violate patent rights (or may
violate patent rights when used by customers), thereby materially affecting their decision
and ability to purchase [Plaintiff’s] products.” (Id.) The statements were made “in
interstate commerce,” and have caused Plaintiff injury in the form of lost sales and
goodwill. (Id. at ¶¶ 135, 137).
Defendant argues that courts in the Ninth Circuit “routinely hold that private
3 Count V of Plaintiff’s Complaint is titled “False or Misleading Representation under the
Lanham Act.” (Doc. 1 at 22). In their Motion, Defendant correctly notes that there is no
claim for “false or misleading representation” or “product disparagement” under 15 U.S.C.
§ 1125(a). (See Doc. 24 at 14). Section 1125(a) “creates two distinct bases of liability:
false association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).” Lexmark
Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118, 122 (2014). However,
Plaintiff’s Response indicates that it intends to bring a false advertising claim. (Doc. 46 at
14). And, upon review of the claim, it is clear that Plaintiff brought a mislabeled false
advertising claim. (See Doc. 1 at ¶¶ 125–42).
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communications such as the Amazon Takedowns do not satisfy the ‘commercial
advertising or promotion’ element of the Lanham Act.” (Doc. 24 at 20). To constitute a
commercial advertising or promotion, a statement must be
(1) commercial speech; (2) by a defendant who is in commercial competition
with plaintiff; (3) for the purpose of influencing consumers to buy
defendant's goods or services. While the representations need not be made in
a ‘classic advertising campaign,’ but may consist instead of more informal
types of ‘promotion,’ the representations (4) must be disseminated
sufficiently to the relevant purchasing public to constitute ‘advertising’ or
‘promotion’ within that industry.
Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999)
(citation omitted).
In BLM Products, Ltd. v. Covves, LLC, the defendant “made representations to
Amazon by filling out an infringement form on Amazon.com.” 2017 WL 8811269, *5
(C.D. Cal. 2017). The court noted that, despite being commercial speech, “the
representation was made only to Amazon, out of view of the general public.” Id. As a
result, the court concluded that the representations did not fall within the meaning of
“commercial advertising or promotion” because they were not disseminated to the relevant
purchasing public. Id. A similar Lanham Act claim was brought in Sky Billiards, Inc. v.
WolVol, Inc., 2016 WL 7479426, *2 (C.D. Cal. 2016), where the plaintiff’s products were
removed from Amazon following the defendant’s complaints to Amazon. The plaintiff
“only allege[d] Defendant contacted Amazon and alleged thirty-two of Plaintiff’s products
violated Defendant's intellectual property rights.” The court found that “[a] reasonable
inference cannot be made that by contacting Amazon, Defendant has made a commercial
speech for the purpose of influencing consumers.” Id.; Thimes Solutions Inc. v. TP Link
USA Corp., 2020 WL 6154192, *2 (C.D. Cal. 2020) (“Defendants’ complaints were made
directly to Amazon—who is not a consumer—and the complaints were not disseminated
to the relevant purchasing public (i.e., Amazon users who might purchase Plaintiff's
products).”); Studio 010 Inc. v. Digital Cashflow LLC, 2022 WL 1215529, *5 (W.D. Wash.
2022) (“[The defendant’s] false complaints to Amazon do not constitute commercial
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speech because the complaints were made directly to Amazon and not to consumers.”).
Plaintiff alleges that Defendant’s “false and misleading representations were
sufficiently disseminated to actual and prospective customers by way of the Takedown
Notices so as to constitute advertising.” (Id. at ¶ 132). But Plaintiff’s allegation that
Defendant’s false representations were “sufficiently disseminated” to customers is
conclusory and is not supported by any other alleged facts. See Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). Like in each of the above cases, Plaintiff alleges that the
Takedown Notices were only made to Amazon. (See, e.g., id. at ¶¶ 4, 29, 106, 113, 129).
“[Plaintiff] never explains how these notices were disseminated to customers,” and the
Complaint is otherwise devoid of any allegation that allows one to infer that the Takedown
Notices were disseminated to customers. ZAGG Inc. v. Ichilevici, 2024 WL 3874584, *9
(S.D. Fla. 2024).
In short, the Complaint fails to establish that Defendant’s Takedown Notices are
“commercial advertising or promotion,” and Plaintiff’s false advertising claim is
dismissed. This dismissal is without prejudice, but Plaintiff should consider whether the
complaints to Amazon were actually disseminated to the purchasing public before opting
to amend.
4. Tortious Interference and APTA Claims
Lastly, Defendant argues that Plaintiff’s tortious interference and APTA claims fail
to plead either “improper” or “bad faith” interference. (Doc. 24 at 21–22).
Regarding Plaintiff’s tortious interference claim, Defendant argues that interference
must be “improper” before liability attaches. (Id. at 21 (citing B. J B. Cattle Co., Inc. v.
Pace, 763 P.2d 545 (Ariz. Ct. App. 1988)). “Wrongful interference rests on improper
conduct by the defendant[.]” Pace, 763 P.2d at 547. Similarly, Defendant argues that to
be liable under the APTA, there must be an assertion of bad faith patent infringement. (Id.
(citing A.R.S. § 44-21 et seq.)). The Court has already found that, based on the totality of
the Complaint, Plaintiff has alleged that Defendant submitted its Takedown Notices
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knowing that the Accused Products did not infringe the ’531 Patent. (See Doc. 1 at ¶¶ 73–
74). These allegations sufficiently allege that Defendant’s interference was improper and
infringement claim was in bad faith. Further probing into the validity of Plaintiff’s
allegations is inappropriate at this stage.
Accordingly,
IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 24) is GRANTED IN
PART and DENIED IN PART. Count III is DISMISSED WITH PREJUDICE. Counts
IV and V are DISMISSED WITHOUT PREJUDICE. Defendant’s Motion as to
Plaintiff’s Counts VI and VII for tortious interference and violations of the APTA is
DENIED and these claims may proceed.
Dated this 13th day of February, 2026.
Honorable Diane J. Humetewa
United States District Judge
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