What is a "rescue" dog? Jury will have to decide

PetConnect Rescue, Inc. v. Salinas, 2023 WL 2026546, No. 20-CV-00527-RSH-DEB (S.D. Cal. Feb. 15, 2023)

Defendants allegedly sold non-rescue dogs as rescue dogs. Plaintiffs PetConnect, Lucky Pup, and Second Chance Dog Rescue are three nonprofit animal rescue organizations that claim defendants infringed on their names and marks to disguise the sale of non-rescue dogs and bolster defendants’ reputations. (There are factual disputes over whether defendants sold non-rescue dogs. One individual defendant described them as “rescues” because they were “donated”—i.e., defendant PetConnect did not pay for these puppies because they were “unsellable, or something to that effect.”)

Plaintiff Gonzalez is an individual consumer alleging that she was defrauded into purchasing a non-rescue puppy from defendants. Gonzalez testified that an employee of Town Puppies told her that Charlie was a rescue, and the information displayed on Charlie’s cage (known as a “cage card”) stated that he was from “Pet Connect Rescue.” Although Gonzalez and her family were “looking into a rescue dog,” she acknowledged she was not looking to purchase to a dog that specifically came from PetConnect or any other rescue organization. Gonzalez’s declaration represented that seeing the name “Pet Connect Rescue” made her “feel good about the purchase, as the name sounded like a reputable rescue organization,” and the name was “part of what made [her] decide to make this purchase.”

I’m not going to discuss the trademark claims—for obvious reasons, summary judgment was denied on infringement and granted on federal dilution for want of fame.

Lanham Act false advertising: Gonzalez lacked statutory standing.

As to “commercial advertising and promotion,” plaintiffs identified three types of uses: (1) the cage cards displayed at defendants’ retail pet stores; (2) verbal representations made by pet store employees that the puppies sold were from “Pet Connect Rescue”; and (3) defendant Pet Connect’s website.

The defendants who used cage cards had signs prominently displayed on the puppy cages that stated, “Rescue Org: Pet Connect,” and that retail stores displayed the name “Pet Connect Rescue,” along with the breed and price, on cages for puppies obtained from Defendant Pet Connect. There was a triable issue as to whether they were commercial speech; defendants argued that they lacked an economic moivation, but plaintiffs argued that the entire purpose of displaying the cage cards with the name “Pet Connect Rescue” was to sell non-rescue dogs for a profit under the guise of a legitimate rescue name. The trier of fact would have to resolve this; there was no dispute that the cage cards were in advertising format and about the puppies for sale. “To the extent Plaintiffs argue that the labeling of the puppies during transport—before the puppies were made available to consumers at the pet store—constitutes false advertising, the Court is unpersuaded. The Court fails to see how consumers could be influenced to buy the puppies based on labeling that they did not see or were not meant to see.”

Even if they were commercial speech, there was also a triable issue as to whether the cage cards were disseminated sufficiently to the relevant purchasing public. [For an individual animal, what more were they supposed to do? The sufficient dissemination standard should probably not be assessed in relation to the overall pet market, or not even national TV advertising would reach more than a fraction of the audience.]

Likewise, although “oral statements can constitute commercial advertising or promotion,” there was a factual dispute as to whether the specific statements made by defendants’ employees constituted “commercial speech” or was sufficiently disseminated to the relevant purchasing public.

Defendant Pet Connect’s website: Plaintiffs argued that the following statements were false advertising:

(1) Pet Connect Rescue Inc. is a 501(c)3 non-profit organization ... operating an open admission animal rescue for care, assistance for other pet organizations, and pet homing partners which ultimately find homes for all pets. ... Our focus is always finding a positive homing effort for all pets. We provide solutions that make a long-lasting difference.

(2) How do we obtain our Pets

We work with many sources throughout the U.S.A. Starting from families with accidental litters, unexpected life style changes, unwanted pets, strays, breed defects, shelters, surrenders, other rescue groups, and seized pets are only a small part of how we obtain our pets. If you or your organization needs help to find a permanent home for a pet then please contact us so we can connect you with one of our Pet Homing Partners. Working with each other as a team makes the difference.

These statements were allegedly false because (1) defendant Pet Connect existed solely to provide puppies for retail sale; (2) people never directly adopted animals from defendant Pet Connect; (3) defendant Pet Connect never took physical possession of any animals; and (4) each puppy from defendant Pet Connect had a breeder and broker source

The relevant defendants conceded (2) and (3), but they disputed (1) and (4). Although there was evidence of invoices and discounts in relation to puppies, defendants argued that these were solely “shipping” costs and not for the puppies themselves. This created a genuine issue of material fact on falsity as to defendants involved with the website.

California UCL: As to violating pet-store-specific laws against selling non-rescue pets, there was a genuine issue of material fact. The court was willing to impose vicarious liability on certain non-pet store defendants, where there was ample evidence that they worked with pet store defendants in obtaining and transporting puppies to sell at retail stores in California. A reasonable jury could find that this constitutes “substantial assistance or encouragement.” And vicarious liability could also attach to their employers for acts within the scope of employment.

CLRA: Gonzalez alleged that defendants “misrepresented to consumers in California, including [Gonzalez], that Defendants are selling ‘rescue puppies’ when in fact they are selling puppies from puppy mills.” The misrepresentation at issue was not whether the dogs were legally obtained and sold, but whether they were sourced from “puppy mills or mass breeding operations” that Gonzalez would not have supported through her purchase. There was a triable issue on that.

Common-law fraudulent deceit: Along with the issues above, there were factual disputes as to whether Gonzalez justifiably relied on the alleged misrepresentation. Some defendants argued that Gonzalez could not have reasonably expected her dog to be “rescue” given that she paid $2,000 for an eight-week old “designer breed Puggle” at a retail pet store. Gonzalez admitted in her deposition that she believed the price was “a little high,” but she also testified that the employee explained the price and, in a subsequent declaration, stated she felt good about the purchase because her dog appeared to be from a reputable rescue. Further, Gonzalez testified that she was interested in a small “rescue” dog, not specifically for a Puggle. That was enough for a genuine dispute of material fact as to whether—given the dog’s breed, price, age, and location of sale—there was justifiable reliance.