Avid Identification Systems, Inc. v. Schering-Plough Corp.

MEMORANDUM *

Avid Identification Systems, Inc. (“Avid”) appeals the district court’s denial of Avid’s motion for partial summary judgment and its request for an injunction against Schering-Plough Corporation and Schering-Plough Animal Health Corporation (“Schering”) in Avid’s action alleging unfair competition under the Lanham Act ( 15 U.S.C. § 1125 ) and California law. Avid also appeals the district court’s order, certified pursuant to Federal Rule of Civil Procedure 54(b), granting summary judgment in favor of Schering on Avid’s claims. Avid contends that the district court erred in holding that there were no disputed issues of fact regarding the accuracy and materiality of various representations made by Schering. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse in part, affirm in part, and remand for trial.

We review the district court’s grant of summary judgment de novo. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir.2001).

Under § 43(a) of the Lanham Act, an actionable claim for false advertising includes the following elements: (1) a false statement of fact in a commercial advertisement; (2) evidence that the statement actually…