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ThermoLife International LLC v. Vital Pharmaceuticals Inc.

United States District Court, S.D. Florida

October 7, 2019




         THIS CAUSE is before the Court upon Defendant Vital Pharmaceuticals Incorporated's (“VPX” or “Defendant”) Motion to Dismiss, ECF No. [73] (the “Motion”). The Court has carefully considered the Motion, all opposing and supporting submissions, including Plaintiff ThermoLife International LLC's (“ThermoLife” or “Plaintiff”) Response, ECF No. [78], and VPX's Reply, ECF No. [81], the record in this case and the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is granted in part.

         I. BACKGROUND

         The dispute in this case involves amino acid-nitrate compounds and compositions in dietary supplements. ThermoLife was founded in 1998 to provide dietary supplements, and holds numerous patents related to the development and use of ingredients in dietary supplements and food products. ThermoLife also licenses patents related to compounds used in dietary supplements. VPX distributes dietary supplements across the United States. One of the products licensed and sold by ThermoLife is a patented creatine nitrate used in dietary supplements meant to promote muscle mass. The creatine nitrate supplied by ThermoLife is included in many top-selling dietary supplements. According to ThermoLife, VPX has attacked ThermoLife's creatine nitrate in its own advertising, including false and misleading statements about VPX's “Super Creatine” because products including ThermoLife's creatine nitrate compete directly with VPX's products.

         As a result of VPX's alleged false and misleading statements, ThermoLife asserts three claims in its Complaint: Count 1: Violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); Count 2: Common Law Unfair Competition; and Count 3: A Declaratory Judgment that a press release ThermoLife made regarding a VPX patent is not defamatory. See generally ECF No. [1] (“Complaint”). In the Motion, VPX seeks dismissal of the Complaint for lack of statutory standing and failure to state a claim under Rule 12(b)(6).


         Rule 8 of the Federal Rules requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. These elements are required to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which requests dismissal for failure to state a claim upon which relief can be granted.

         When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual allegations in the complaint ‘obvious alternative explanations,' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).


         In the Motion, VPX first argues that ThermoLife lacks statutory standing to assert its Lanham Act claim. Courts have referred to this requirement as “prudential” standing. However, the Supreme Court has since clarified that the relevant inquiry is whether “this particular class of persons has a right to sue under the substantive statute.” Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014) (citation omitted). As such, in addition to satisfying the constitutional requirement of standing, a plaintiff must also satisfy the requirements of statutory standing. Bank of Am. Corp. v. City of Miami, Fla., 137 S.Ct. 1296, 1302 (2017).

         The test for determining whether a plaintiff has statutory standing under the Lanham Act requires a determination of whether a plaintiff's interests “fall within the zone of interests protected by the law invoked” and whether the injuries suffered were “proximately caused by violations of the statute. Lexmark Int'l, Inc., 572 U.S. at 129, 132.

[T]o come within the zone of interests in a suit for false advertising under § 1125(a), a plaintiff must allege an injury to a commercial interest in reputation or sales. A consumer who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact cognizable under Article III, but he cannot invoke the protection of the Lanham Act . . . . Even a business misled by a supplier into purchasing an inferior product is, like consumers generally, not under the Act's aegis.

Id. at 131-32. In addition, “a plaintiff suing under § 1125(a) ordinarily must show economic or reputational injury flowing directly from the deception wrought by the defendant's advertising; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff.” Id. at 133.

         VPX argues that Thermolife lacks statutory standing because the Complaint fails to plausibly allege an injury within the zone of interests protected by the Lanham Act, including injury to profits or reputation, as Thermolife does not deal in any goods or interact with the consuming public and therefore has no sales or goodwill to damage. VPX argues further that Thermolife fails to ...

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