ThermoLife wins appeal of Lexmark-based dismissal of claims

Thermolife Int’l, LLC v. Compound Solutions, Inc., No. 20-16138, --- Fed.Appx. ----, 2021 WL 963782 (9^th Cir. Mar. 15, 2021)

ThermoLife got a significant success in this appeal of the dismissal of its false patent marking, false advertising, and unfair competition claims.

One part was affirmed: TL alleged that Compound falsely marked one of its products, “VASO6,” as patented even though VASO6 does not practice a patented invention and is merely common green tea extract. Although TL sufficiently pled false marking by alleging that lab results confirmed that there were no patented materials in it, it didn’t plausibly allege an intent to deceive the public. It wasn’t enough to allege that Compound was a “sophisticated” seller.

TL also alleged that Compound falsely advertised that VASO6 has vasodilative properties, “and therefore potential customers were deceived into purchasing VASO6 and that such false advertising diverted sales away from ThermoLife’s nitrates.” Was TL allowed to sue under Lexmark? Yes. Its injury was in the Lanham Act’s zone of interests because ThermoLife alleged that customers chose VASO6 over ThermoLife’s nitrates, which is a commercial injury to sales. And it alleged proximate cause by alleging that its nitrates directly compete with Compound’s falsely advertised VASO6. It alleged that both its nitrates and VASO6 [purportedly] increase vasodilation “and are sold at the same level in the dietary supplement supply chain to pump and pre-workout manufacturers for licensing and use in their own products.” Further, some of TL’s customers considered replacing or replaced TL’s nitrates with VAS06.  Products containing the ingredients are allegedly displayed side-by-side in the “pump and pre-workout” sections of online shops and brick-and-mortar stores. This sufficed, and so the Lanham Act and congruent state law claims were revived.