1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 WOODWAY USA, INC., Case No.: 24-cv-1936-AGS-AHG 4 Plaintiff, ORDER GRANTING DEFENDANT’S

MOTION TO DISMISS (ECF 10)

5 v. 6 LIFECORE FITNESS, LLC d/b/a 7 ASSAULT FITNESS, 8 Defendant. 9 10 This trademark and unfair-competition case about treadmills runs on the heels of a 11 related patent-infringement case. See Woodway USA, Inc. v. LifeCORE Fitness, Inc., No. 12 22-cv-0492-JO-BLM (S.D. Cal. 2022). Defendant won summary judgment in the patent 13 case, id. ECF 175, and now moves to dismiss some of the unfair-competition claims against 14 it here. 15 BACKGROUND 16 Plaintiff Woodway USA, Inc., owns the trademark “FOR THE LONG RUN.” 17 (ECF 1, at 3.) This trademark is affiliated with its “non-motorized exercise treadmills” that 18 have a curved running surface, introduced in 2009 “under the trademark CURVE.” (Id.) 19 “Since at least as early as 2010, Woodway’s CURVE Treadmills have been featured in 20 various scientific and academic reports, studies, and publications” to “demonstrate, 21 measure, and assess the health or physiological benefits of the use of non-motorized 22 treadmills.” (Id.) Woodway uses the results from these studies to advertise that “users can 23 burn up to ‘30% more calories’ by using a CURVE-branded treadmill than by using a 24 motorized treadmill” (id. at 5), and that “the running surface can last ‘up to 150,000 miles’ 25 without the need for substitution or repair” (id. at 6). “[A]gencies and news commentators” 26 have been “linking” these studies to the CURVE Treadmills since “at least as early as” 27 2011 and 2012, respectively. (See id. at 5–6.) 28 1 Defendant LifeCORE Fitness, LLC, doing business as Assault Fitness, is “a direct 2 competitor of Woodway.” (ECF 1, at 2.) Assault began promoting its own line of 3 non-motorized treadmills with the slogan “BUILT FOR THE LONG RUN” as well as 4 advertising that they help burn up to “30% more calories” than motorized treadmills and 5 last “up to 150,000 miles” without the need for repair or substitution. (Id. at 5–7.) Assault 6 uses these attributes to advertise the Assault Treadmills on its website and in promotional 7 material provided to its distributors. (See id. at 6–7.) 8 Woodway filed suit alleging trademark violations stemming from both the “FOR 9 THE LONG RUN” mark and the 30%-more-calories and up-to-150,000-miles advertising 10 statements. (See ECF 1.) Assault moves to dismiss Woodway’s claims arising only from 11 Assault’s use of the advertising statements: violations of the Lanham Act, 15 U.S.C. § 1051 12 et seq. (claims 2 through 5), California’s Unfair Competition Law, Cal. Bus. & Prof. Code 13 § 17200 (claim 7), and California’s Consumer Legal Remedies Act, Cal. Civ. Code § 1770 14 (claim 8). (See ECF 10-1.) 15 DISCUSSION 16 To survive a motion to dismiss, the complaint must contain enough facts to “state a 17 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 18 (cleaned up). At this early stage, the Court accepts “the factual allegations in the complaint 19 as true” and construes them “in the light most favorable to the plaintiff.” GP Vincent II v. 20 Estate of Beard, 68 F.4th 508, 514 (9th Cir. 2023). Mere “conclusory allegations of law 21 and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. 22 Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). 23 Claims sounding in fraud face a higher bar: they “must state with particularity the 24 circumstances constituting fraud.” Fed. R. Civ. P. 9(b). “Although the Ninth Circuit has 25 not definitively spoken as to whether Rule 9(b) applies to Lanham Act claims, the better 26 reasoned district court authority is that, where a Lanham Act claim is predicated on the 27 theory that the defendant engaged in a knowing and intentional misrepresentation, then 28 Rule 9(b) is applicable.” Clorox Co. v. Reckitt Benckiser Grp. PLC, 398 F. Supp. 3d 623, 1 634 (N.D. Cal. 2019). Since Woodway alleges Assault’s violations are “deliberat[e], 2 willful[], and in bad faith” (ECF 1, at 10), and since Woodway “allege[s] a unified course 3 of fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of” all the 4 claims at issue here, “the pleading as a whole must satisfy the particularity requirement of 5 Rule 9(b),” Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). 6 So Woodway must plead “the who, what, when, where, and how of the misconduct 7 charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). The claims 8 considered here are all based on the same facts and each satisfies the who (Assault), what 9 (the caloric-expenditure and durability advertising statements), when (various dates 10 beginning in February 2017), and where (within multiple advertisements). (ECF 1, at 2, 11 6–9, 10.) The Court now turns to the “how.” 12 A. Lanham Act Claims 13 Woodway brings claims under two Lanham Act liability theories: false designation 14 of origin (also called “false association”), 15 U.S.C. § 1125(a)(1)(A), and false advertising, 15 id. § 1125(a)(1)(B). 16 1. False Designation of Origin 17 The false-designation provision seeks to deter, among other things, “confusion” “as 18 to the origin” of goods. 15 U.S.C. § 1125(a)(1)(A). Woodway must show that Assault 19 “(1) use[d] in commerce (2) any word, false designation of origin, false or misleading 20 description, or representation of fact, which (3) is likely to cause confusion or 21 misrepresents the characteristics of his or another person’s goods or services.” Freecycle 22 Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir. 2007); see also AECOM Energy & 23 Constr., Inc. v. Morrison Knudsen Corp., 748 F. App’x 115, 118 (9th Cir. 2018) (applying 24 these elements to a false-designation claim). 25 Among other points, Assault zeroes in on the confusion element and attacks 26 Woodway’s “factual basis to show how” Assault’s use of “common industry words and 27 phrases to describe its treadmills are false or misleading in fact” as to the origin of its 28 products. (ECF 10-1, at 15.) According to Assault, Woodway “fails to articulate how 1 consumers would be confused” by Assault’s “descriptive use of common product claims,” 2 since “[c]onsumers do not associate such claims” “exclusively with” Woodway. (Id.) 3 Assault is right. 4 The Lanham Act’s “origin of goods” provision prohibits misleading claims 5 specifically about “the producer of the tangible goods that are offered for sale,” but not 6 about “the author of any idea, concept, or communication embodied in those goods.” 7 Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37 (2003). For example, 8 in Baden Sports, Inc. v. Molten USA, Inc., 556 F.3d 1300 (Fed. Cir. 2009), the Federal 9 Circuit applied Ninth Circuit law and rejected an argument that the defendant was liable 10 for false designation of origin when it advertised certain basketball technology as its own 11 “innovation,” even though it was plaintiff’s patented technology. Id. at 1303–05. The 12 Baden court reasoned that the “innovation” advertisement referred only to “‘the author of’ 13 the idea or concept behind [defendant’s] basketballs,” which does not qualify as false 14 designation of origin under the Lanham Act. Id. at 1306. In other words, the claim failed 15 because plaintiff never “argued that someone other than [defendant] produces the 16 infringing basketballs, and nothing in the record indicates that [defendant] is not in fact the 17 producer of the balls.” Id. 18 Similarly, the 30%-more-calories and 150,000-mile statements here “do not cause 19 confusion as to the [product’s] origin.” See Baden Sports, 556 F.3d at 1306. They merely 20 describe purported traits of the treadmills, without even referring to who produced them. 21 Thus, Assault’s motion to dismiss the false-designation claims is granted. 22 2. False Advertising 23 The Lanham Act’s false-advertising proviso prohibits misrepresentation in 24 advertising as to “the nature, characteristics, qualities, or geographic origin of” one’s own 25 “goods, services, or commercial activities.” 15 U.S.C. § 1125(a)(1)(B). To state such a 26 claim, Woodway must allege, among other things, that Assault made “a false statement of 27 fact” “in a commercial advertisement.” Wells Fargo & Co. v. ABD Ins. & Fin. Servs., 758 28 F.3d 1069, 1071 (9th Cir. 2014) (cleaned up). Assault says Woodway falters at this crucial 1 step by “fail[ing] to allege how or why or what aspect of [Assault’s] product descriptions 2 concerning its treadmills are false or misleading.” (ECF 10-1, at 18.) Right again. 3 “To demonstrate falsity within the meaning of the Lanham Act,” plaintiffs need to 4 show that “the statement was literally false,” “or that the statement was literally true but 5 likely to mislead or confuse consumers.” Southland Sod Farms v. Stover Seed Co., 6 108 F.3d 1134 (9th Cir. 1997). Woodway makes no positive claim that the 7 30%-more-calories and 150,000-mile statements are in fact false, but instead seeks to shift 8 the burden to Assault, pleading that Assault “has no basis in fact to directly or indirectly 9 promote or advertise” their treadmills with these representations. (ECF 1, at 9.) That is not 10 enough. “The plain language of [the Lanham Act], which prohibits false rather than 11 unsubstantiated representations, requires that a plaintiff establish not merely that the 12 defendant’s claims lack substantiation but also that it is false or deceptive.” U-Haul Int’l, 13 Inc. v. Jartran, Inc., 522 F. Supp. 1238, 1248 (D. Ariz. 1981) (cleaned up). Thus, 14 Woodway’s claim “cannot prevail because it is a ‘lack of substantiation’ argument, and a 15 false advertising claim cannot be proved on ‘lack of substantiation’ grounds.” Caltex 16 Plastics, Inc. v. Elkay Plastics Co., Inc., No. 2:12-cv-10033 RSWL (JEMx), 2015 WL 17 13283255, at *5 (C.D. Cal. Feb. 4, 2015); see also Sandoz Pharms. Corp. v. Richardson- 18 Vicks, Inc., 902 F.2d 222, 228 (3d Cir. 1990) (“[A] Lanham Act plaintiff bears the burden 19 of showing that a challenged advertisement is false or misleading, not merely that it is 20 unsubstantiated by acceptable tests or other proof.”). Assault’s motion to dismiss the 21 false-advertising claims is granted. 22 B. State-Law Claims 23 Woodway also claims Assault violated two California statutes: the Consumer Legal 24 Remedies Act and the Unfair Competition Law. (See ECF 1, at 14–15.) 25 1. California Consumer Legal Remedies Act 26 The CLRA prohibits a series of enumerated “unfair methods of competition and 27 unfair or deceptive acts or practices.” Cal. Civ. Code § 1770(a). Assault advances familiar 28 arguments in favor of dismissing the CLRA claim: “Plaintiff fails to allege any facts at all 1 to show how Defendant’s description of its treadmills is materially misleading in terms of 2 the characteristics and benefits.” (ECF 10-1, at 200; see also id. at 23 (“Plaintiff has 3 provided nothing more than conclusory statements about Defendant’s alleged 4 misrepresentations.”).) The Court agrees that the CLRA should be dismissed, but not for 5 the reasons Assault suggests. 6 “The Supreme Court has made clear that in adjudicating a claim or issue,” the Court 7 has “the authority to identify and apply the correct legal standard, whether argued by the 8 parties or not.” Thompson v. Runnels, 705 F.3d 1089, 1098 (9th Cir. 2013). Once “an issue 9 or claim is properly before the court, the court is not limited to the particular legal theories 10 advanced by the parties, but rather retains the independent power to identify and apply the 11 proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 12 (1991). To that end, the Court is free to “consider an issue antecedent to and ultimately 13 dispositive of the dispute before it, even an issue the parties fail to identify and brief.” 14 United States Nat. Bank of Oregon v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 15 447 (1993). That’s the case here: The parties failed to mention that the CLRA does not 16 apply to Woodway. 17 The CLRA provides a cause of action for “[a]ny consumer who suffers any damage.” 18 Cal. Civ. Code § 1780(a). A “consumer” is “an individual who seeks or acquires, by 19 purchase or lease, any goods or services for personal, family, or household purposes.” Id. 20 § 1761(d). “A corporation . . . cannot seek or acquire” a product “for ‘personal, family, or 21 household purposes,’ and the language of the statute clearly envisions a person as the 22 ‘individual’ permitted to bring suit.” Bristow v. Lycoming Engines, No. CIV. S-06-1947 23 LKK/GGH, 2007 WL 1752602, at *5 (E.D. Cal. June 15, 2007). In short, as a corporation, 24 Woodway does not have standing to sue under the CLRA. See California Grocers Assn. v. 25 Bank of Am., 27 Cal. Rptr. 2d 396, 404 (1994) (concluding that the CLRA “does not apply” 26 because the plaintiff association of grocers was “not a consumer”); Blair v. Mercedes-Benz 27 of N. Am., Inc., 914 F.2d 261 (9th Cir. 1990) (unpublished) (holding that the CLRA 28 “grant[s] standing to individuals, not to corporations”). 1 2. California Unfair Competition Law 2 The UCL prohibits “any unlawful, unfair or fraudulent business act or practice.” Cal. 3 Bus. & Prof. Code § 17200. “Each of the three ‘prongs’ under the UCL—(1) unlawful, 4 (2) unfair, and (3) fraudulent—creates an independent theory of liability.” PetConnect 5 Rescue, Inc. v. Salinas, 656 F. Supp. 3d 1131, 1171 (S.D. Cal. 2023) (cleaned up). 6 Woodway brings its claim under the “unlawful” and “unfair” prongs. (See ECF 1, at 14.) 7 a. Unlawful 8 The unlawful prong “borrows violations of other laws and treats them as unlawful 9 practices that the [UCL] makes independently actionable.” Cel-Tech Commc’ns, Inc. v. 10 Los Angeles Cellular Tel. Co., 973 P.2d 527, 539–40 (Cal. 1999) (cleaned up). “Thus, a 11 violation of another law is a predicate for stating a cause of action under the UCL’s 12 unlawful prong.” Berryman v. Merit Prop. Mgmt., Inc., 62 Cal. Rptr. 3d 177, 185 (Ct. App. 13 2007). But a “plaintiff must identify the underlying law on which his UCL claim is based 14 to plead the claim sufficiently.” Zeppeiro v. Green Tree Servicing, LLC, No. CV 14-01336 15 MMM (JCx), 2014 WL 12596427, at *6 (C.D. Cal. Oct. 17, 2014). 16 Woodway has not specified any such underlying legal violations. Rather, it merely 17 incorporates into its UCL claim all previous allegations in the complaint and contends that 18 Assault’s “actions complained of” are “unfair business acts or practices.” (ECF 1, at 15.) 19 These “vague allegations fail to give [Assault] adequate notice of the nature” of 20 Woodway’s UCL claim. See Sleep Sci. Partners v. Lieberman, No. 09-04200 CW, 21 2010 WL 1881770, at *10 (N.D. Cal. May 10, 2010). So, the UCL claim is dismissed as to 22 the “unlawful” prong. 23 b. Unfair 24 For UCL purposes, when a plaintiff “claims to have suffered injury from a direct 25 competitor’s ‘unfair’ act or practice,” “the word ‘unfair’ . . . means conduct that threatens 26 an incipient violation of an antitrust law, or violates the policy or spirit of one of those 27 laws,” “or otherwise significantly threatens or harms competition.” Cel-Tech Commc’ns, 28 973 P.2d at 545. “Injury to a competitor is not equivalent to injury to competition; only the | latter is the proper focus of antitrust laws.” Jd. at 544. Allegations that might satisfy this 2 ||prong include “horizontal price fixing, exclusive dealing, or monopolization.” See 3 || Celebrity Chefs Tour, LLC v. Macy’s, Inc., 16 F. Supp. 3d 1141, 1156 (S.D. Cal. 2014). 4 Woodway doesn’t include any antitrust allegations in its complaint and focuses only 5 |}on harm to itself, not to competition generally. (See ECF 1, at 10 (“Woodway has been, 6 ||and will continue to be, seriously and irreparably damaged.”); id. at 12 (“Woodway has 7 || been and is likely to be injured as a result of Defendant’s misleading representations.”’).) 8 || Accordingly, Woodway also fails to allege unfair business practices under the UCL. 9 CONCLUSION 10 Assault’s motion to dismiss is GRANTED. Because the Lanham Act claims and 11 ||}UCL claim “can possibly be cured by additional factual allegations,” Woodway is granted 12 || leave to amend those claims. See Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 13 |}2013). The same cannot be said about the CLRA claim, so that claim is dismissed without 14 ||leave to amend. See Dinnerman v. Datto, Inc., No. 8:23-CV-02301-JLS-DFM, 2024 WL 15 ||3469043, at *6 (C.D. Cal. May 21, 2024) (“Because the corporate Plaintiffs cannot meet 16 |/the definition of a consumer, leave to amend would be futile.”). Any amended complaint 17 || must be filed by June 13, 2025. Next month’s motion-to-dismiss hearing is vacated. 18 ||Dated: May 23, 2025

0 Hon. rew G. Schopler United States District Judge 21 22 23 24 25 26 27 28