resale is not a misrepresentation of being an authorized seller under false advertising law

FB Select, LLC v. Ocean Blue Trading, LLC, No. 24-cv-8425 (PKC), 2025 WL 2172653 (S.D.N.Y. Jul. 31, 2025)

Finding cases where TM and false advertising law give different outputs on the same facts because of lack of harm/materiality/falsity is my niche! Here’s another one: being an unauthorized seller isn’t false advertising because there’s no false statement of fact.

FB, the exclusive distributor of Klaire Labs supplements on Amazon, sued Ocean Blue for Lanham Act false advertising and tortious interference with contract or prospective business advantages (the court asked for briefing on its supplemental jurisdiction once it kicked out the false advertising claim). FB alleged that Ocean Blue “willfully resell[s] illegally and fraudulently sourced Klaire Products on Amazon without any authorization from SFI.” There was no allegation that the products were counterfeit or nongenuine. FSB alleged instead that “[t]he only plausible way Defendants could be obtaining the volume of products they are reselling is by purchasing them from one or more Authorized Sellers.” (That’s the basis for tortious interference.)

FB didn’t challenge any particular statement about the product or its origins, but instead argued that the act of selling the product on Amazon was an impliedly false statement because it failed to affirmatively disclose that Ocean Blue had acquired the product from authorized sellers of the product who did not have the contractual right to resell it to Ocean Blue. But an act of selling the product “did not impliedly represent anything about the identity of the party selling the product to Ocean Blue or of that seller’s contractual responsibilities.” FB argued that there was an implied representation that Klaire Labs guaranteed or warranted the product, but Ocean Blue didn’t say anything about it, and there was no allegation of a deceptive material omission.