Theos Medical Systems, Inc. v. Nytone Medical Products, Inc.

I. BACKGROUND

2 This is an action for alleged false advertising and unfair competition. Plaintiff Theos says 3 it is a California corporation with its principal place of business in Santa Clara, California. Dkt. 4 No. 1. Theos alleges that defendant Nytone is a Utah corporation with its principal place of 5 business in Provo, Utah. Id. According to the complaint, Theos and Nytone are competitors in the 6 market for bedwetting alarms. Theos describes this as “a niche market with a limited number of 7 competitors.” Dkt. No. 18-1 ¶ 3. Additionally, Theos claims that bedwetting alarms, as a rule, are 8 sold, not in brick-and-mortar stores, but on the internet through Amazon, eBay, and 9 manufacturers’ own websites. Id. ¶ 4. 10 Theos alleges that Nytone made a number of false statements in advertising Nytone’s 11 alarm products, including that Nytone’s devices are “FDA Approved” and “Top Doctor Rated,” 12 and that Nytone has “500,000+ success stories.” Dkt. No. 1 ¶¶ 8-9. Additionally, Theos claims 13 that, at times, Nytone has used as an Amazon search term the word “Chummie,” a Theos brand 14 name for which Theos owns a registered trademark. Id. ¶ 10;2 see also Dkt. No.…