lack of harm allegations beyond "direct competition plus customer inquiries" insufficient for false advertising standing

Kalmbach Feeds, Inc. v. Purina Animal Nutrition, LLC, 2026 WL 598608, No. 2:25-cv-00617 (S.D. Ohio Mar. 4, 2026)

Previously. Kalmbach sued Defendant Purina for false advertising under state and federal law in connection with its Farm to Flock chicken feed, which Purina represented as helping to defend against viruses such as avian influenza.

Although Kalmbach received a preliminary injunction because of the misleadingness of Purina’s claims, it didn’t sufficiently allege injury, so the court granted Purina’s motion to dismiss with leave to amend.  

Kalmbach alleged that deceived consumers asked why Kalmbach has not also produced a feed that defends against avian influenza. And it argued that direct competition plus customer inquiries satisfied the zone of interest test. The court disagreed. There was no allegation of reputational harm in the operative complaint, so Kalmbach had to allege injury to its sales. Allegations that “[c]ustomers have...been misled by Purina’s false claims – to Kalmbach’s direct detriment” were conclusory. “Put differently, Kalmbach must plead that Purina’s false claims actually hurt it, rather than simply confused customers. Kalmbach does not allege that these confused customers would otherwise have purchased Kalmbach’s feed—Kalmbach just presumes injury.”

Now do trademark infringement!