Milo & Gabby LLC v. amazon.com, Inc.

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

MILO & GABBY LLC, KAREN KELLER,
Plaintiffs-Appellants

v.

AMAZON.COM, INC.,
Defendant-Appellee

DA FANG SUN, AKA SETH L, CHONGQIN WORLD
FIRST ELECTRONIC COMMERCE CO., LTD., AKA
WOTEFUSI, T. LIU, AKA BINGO DEAL, FAC
SYSTEM, AKA FAC SYSTEM LLC, DINGDING ZOU,
AKA HAPPY SUNDAY, QIUMEI ZHANG, AKA
HITECE, CHARLOTTE XIA, NIMBLE JOY,
AMANIALARASHI2165, MONAQO,
Defendants
______________________

2016-1290
______________________

Appeal from the United States District Court for the
Western District of Washington in No. 2:13-cv-01932-
RSM, Judge Ricardo S. Martinez.
______________________

Decided: May 23, 2017
______________________
2 MILO & GABBY LLC v. AMAZON.COM, INC.

PHILIP P. MANN, Mann Law Group, Seattle, WA, ar-
gued for plaintiffs-appellants. Also represented by JOHN
WHITAKER, Lane Powell PC, Seattle, WA.

JOHN HUGHES, Bartlit Beck Herman Palenchar &
Scott LLP, Denver, CO, argued for defendant-appellee.
Also represented by JOSEPH DOMAN, KATHERINE HACKER;
GREGORY G. GARRE, JONATHAN Y. ELLIS, Latham & Wat-
kins LLP, Washington, DC.

MARK P. WINE, Orrick, Herrington & Sutcliffe LLP,
Irvine, CA, for amicus curiae eBay, Inc. Also represented
by MATTHEW HERMAN POPPE, Menlo Park, CA.
______________________

Before O’MALLEY, WALLACH, and TARANTO, Circuit
Judges.
O’MALLEY, Circuit Judge.
Milo & Gabby LLC and Karen Keller (collectively,
“Milo & Gabby”) appeal from decisions of the Western
District of Washington finding that Amazon.com, Inc.
(“Amazon”), through its provision of an online market-
place for third parties and its “Fulfillment by Amazon”
services, does not infringe the patents, copyrights, and
trademark of Milo & Gabby. Because the district court
did not err in granting summary judgment on Milo &
Gabby’s copyright and trademark allegations, and be-
cause Milo & Gabby failed to preserve its patent in-
fringement arguments, we affirm.
I. BACKGROUND
A. The Parties’ Relevant Products and Services
Milo & Gabby designs and sells a line of “Cozy Com-
panion” pillowcases. The Cozy Companion pillowcase line
includes animal-shaped pillowcases for children that turn
a child’s pillowcase into a stuffed animal. Milo & Gabby
MILO & GABBY LLC v. AMAZON.COM, INC. 3

owns five U.S. design patents for the designs on its pil-
lowcases that are relevant to this case. The company also
holds copyrights for its pillowcases, its website, and
various other marketing images, including pictures of the
founders’ children holding the pillowcases.
Amazon operates a website that offers an online mar-
ketplace for customers. Although Amazon sells some of
the products available on its website, most of the products
offered for sale on Amazon’s website are offered by third-
party sellers. When a third-party seller uses Amazon’s
website to sell a product, the seller provides information
regarding the product, such as a product description,
images of the product, and a price for the product. Ama-
zon’s website then automatically generates a “product-
detail page” that displays the information and identifies
the seller.
Amazon also offers third-party sellers a service called
“Fulfillment by Amazon,” which allows third-party sellers
to take advantage of Amazon’s logistical network. When
using this service, a third-party seller sends its product to
an Amazon fulfillment center, where Amazon stores the
product. If a customer buys the product from the third-
party seller, Amazon pulls the product off the shelf,
packages it, and ships it to the customer on behalf of the
seller. A third-party seller even can use this service when
selling products outside of Amazon’s online marketplace;
for example, a third-party seller can use the service when
selling the product on another website, such as eBay.
Third-party sellers using the Fulfillment by Amazon
service maintain full ownership of the products stored by
Amazon. The third-party seller using this service can
4 MILO & GABBY LLC v. AMAZON.COM, INC.

remove its stock at any time by requesting that Amazon
return the product to the third-party seller. 1
B. Sales of Knock-Off Pillowcases
When Milo & Gabby began selling their pillowcases,
Karen and Steven Keller, the owners of Milo & Gabby,
used pictures of their children with the pillowcases to
promote the products. In 2013, Milo & Gabby discovered
pillowcases selling on Amazon’s website that were knock-
offs of Milo & Gabby’s Cozy Companion pillowcases. The
depictions of the pillowcases for sale actually were of Milo
& Gabby products, including depictions of the products
being used by the Kellers’ children. But Amazon did not
directly sell any of the knock-off pillowcases offered on
Amazon’s website. The product-detail pages for the
knock-off pillowcases identified ten different entities as
third-party sellers. Out of the ten third-party sellers
selling the knock-off pillowcases, only one, FAC System,
used the Fulfillment by Amazon service.
Milo & Gabby filed a complaint against Amazon on
October 24, 2013. Upon notice of the lawsuit, Amazon
removed the product listings and suspended the third-
party sellers from Amazon’s online marketplace. Some of

1 A limited exception to this policy exists under cer-
tain circumstances in which Amazon must dispose of the
product. If the exception applies, the agreement states
that title will transfer to Amazon at no cost in order for
Amazon to dispose of the product as it sees fit. Although
Milo & Gabby tries to use this limited exception to show
that Amazon does obtain title to third-party products in
some situations, the parties have presented no evidence to
show that Amazon took title to any of the products at
issue in this case. Even if Amazon were to take title
under the Fulfillment by Amazon agreement, it would do
so only to dispose of the product, not to sell it.
MILO & GABBY LLC v. AMAZON.COM, INC. 5

the third-party sellers tried to relist the knock-off pillow-
cases on Amazon’s online marketplace by changing the
product name, but Amazon removed the new listings and
new sellers as soon as it learned of them.
C. Procedural History
Milo & Gabby’s complaint against Amazon asserted
various state and federal claims, including patent in-
fringement, copyright infringement, false designation of
origin under the Lanham Act, and trademark counterfeit-
ing under the Lanham Act. Relevant to this appeal, the
district court granted in part Amazon’s motion for sum-
mary judgment on July 16, 2015. Milo & Gabby, LLC v.
Amazon.com, Inc. (Summary Judgment Order), No. C13-
1932RSM, 2015 U.S. Dist. LEXIS 92890 (W.D. Wash. July
16, 2015). The district court granted the motion as to
direct copyright infringement because it found “no evi-
dence in the record that Amazon actively reviewed, edit-
ed, altered or copied [Milo & Gabby’s] images.” Id. at *11.
The district court further noted that “Amazon is not the
seller of the alleged infringing products” because “third-
party sellers retain full title to and ownership of the
inventory sold by the third party.” Id. at *15–16.
The district court also granted Amazon’s motion for
summary judgment as to Milo & Gabby’s Lanham Act
claims. The court found that Milo & Gabby had provided
no evidence of any violation of a valid, enforceable mark
entitled to protection under the Lanham Act. The court
also rejected Milo & Gabby’s “palming off” allegation
because it found that Milo & Gabby had not raised the
claim or alleged any facts in the complaint to put Amazon
on notice of this theory.
The district court denied Amazon’s motion for sum-
mary judgment as to Amazon’s liability for direct patent
infringement, however. Amazon argued that it never sold
or offered to sell the products within the meaning of
§ 271(a). In response to Amazon’s motion, Milo & Gabby
6 MILO & GABBY LLC v. AMAZON.COM, INC.

argued that Amazon was liable for direct patent in-
fringement because it offered to sell the products; Milo &
Gabby did not argue that Amazon “sold” the products,
either individually or jointly. The district court deter-
mined that a factual question precluded summary judg-
ment on the “offer to sell” theory.
Prior to trial on the direct infringement claim’s “offer
to sell” theory, Amazon filed a motion for attorney’s fees
and costs because of its status as a prevailing party under
both the Copyright Act and the Lanham Act. The district
court denied Amazon’s motion with respect to the copy-
right claims, finding that they were not frivolous. But it
granted Amazon’s request with respect to the Lanham Act
claims, finding that Milo & Gabby “essentially pursued a
claim for which they had no evidentiary basis, and then
attempted to circumvent that problem by improperly
raising legal arguments never pled in their Complaint.”
Milo & Gabby, LLC v. Amazon.com, Inc., No. C13-
1932RSM, 2015 U.S. Dist. LEXIS 117213, at *12 (W.D.
Wash. Sept. 1, 2015). The district court also found that
Milo & Gabby had ignored the court’s dismissal of the
Lanham Act claims and continued to argue that it would
pursue its Lanham Act claims at trial; the court found
that Milo & Gabby’s “apparent willful ignorance of the
Court’s dismissal of their Lanham Act claims serves as
another basis to find frivolousness in this matter.” Id. at
*13. The court therefore found the case exceptional under
the Lanham Act and awarded attorney’s fees and costs.
Id.
As trial approached, the parties agreed that the re-
maining question, whether Amazon offered the products
for sale, was a question of law for the district court to
decide. See Milo & Gabby, LLC v. Amazon.com, Inc., 144
F. Supp. 3d 1251, 1252 (W.D. Wash. 2015). The district
court empaneled an advisory jury to answer underlying
factual questions. Id. After trial, the jury found in favor
of Amazon on all of the factual questions. Id. Based on
MILO & GABBY LLC v. AMAZON.COM, INC. 7

the jury’s findings and the evidence presented at trial, the
district court determined that Amazon did not offer to sell
the products at issue. Id. at 1252–53.
II. JURISDICTION
Milo & Gabby timely filed a notice of appeal. Before
proceeding to the merits, we must satisfy ourselves of our
subject matter jurisdiction over the appeal. Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 575 (1999). We have
jurisdiction over “appeal[s] from . . . final decision[s]
of . . . district court[s] of the United States . . . in any civil
action arising under . . . any Act of Congress relating to
patents.” 28 U.S.C. § 1295(a)(1) (2012) (emphasis added).
In its opening brief to this court, Milo & Gabby nei-
ther cites to Title 35 of the U.S. Code, which governs
patents, nor presents any arguments raising issues specif-
ic to patent law. See Appellants’ Br. 3, 20–43. In fact,
Milo & Gabby only uses the word “patent” four times in
the argument section of its opening brief, and the word
appears each time in a header or an introductory sentence
applying equally to Milo & Gabby’s copyright infringe-
ment claim. Id. at 20, 29. In contrast, Milo & Gabby
focuses almost exclusively on its copyright and trademark
claims, and it repeatedly cites Title 17 of the U.S. Code,
which governs copyrights, and Title 15 of the U.S. Code, 2
which governs trademarks. See id. at 29–43.
Nevertheless, Milo & Gabby’s complaint alleges pa-
tent infringement, J.A. 156, and “Federal Circuit jurisdic-
tion depends on whether the plaintiff’s complaint as
amended raises patent law issues,” Chamberlain Grp.,
Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1189 (Fed. Cir.

2 Although Milo & Gabby does not cite to Title 15
itself, it repeatedly refers to the Lanham Act, which is
codified in Title 15 of the U.S. Code.
8 MILO & GABBY LLC v. AMAZON.COM, INC.

2004) (citations omitted). We therefore have jurisdiction
over the case pursuant to 28 U.S.C. § 1295(a)(1) (2012).
III. DISCUSSION
We review a district court’s grant of a motion for
summary judgment under the law of the regional circuit.
Teva Pharm. Indus. Ltd. v. AstraZeneca Pharm. LP, 661
F.3d 1378, 1381 (Fed. Cir. 2011). The Ninth Circuit
reviews the grant of a motion for summary judgment de
novo. Universal Health Servs. Inc. v. Thompson, 363 F.3d
1013, 1019 (9th Cir. 2004). We review the district court’s
award of attorney’s fees under the Lanham Act for abuse
of discretion. See Highmark Inc. v. Allcare Health Mgmt.
Sys., 134 S. Ct. 1744, 1748–49 (2014); Octane Fitness,
LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749,
1756; see also Sunearth, Inc. v. Sun Earth Solar Power
Co., 839 F.3d 1179, 1181 (9th Cir. 2016) (en banc) (“We
agree with the majority of our sister circuits and conclude
that Octane Fitness and Highmark have altered the
analysis of fee applications under the Lanham Act. . . .
Pursuant to Highmark, our review of the district court’s
decision on fees awarded under the Lanham Act is for
abuse of discretion.”).
On appeal, Milo & Gabby argues that the district
court erred in its analysis of the patent infringement,
copyright infringement, and trademark infringement
issues. Milo & Gabby also argues that the district court
abused its discretion in awarding attorney’s fees to Ama-
zon. Although Milo & Gabby’s notice of appeal identifies
twelve separate decisions by the district court that form
the basis of this appeal, J.A. 1–3, its opening brief does
not identify which of its arguments applies to which
decision below and does not articulate the appropriate
standard of review or the legal framework for each claim
on appeal. “It is well established that arguments that are
not appropriately developed in a party’s briefing may be
deemed waived.” United States v. Great Am. Ins. Co., 738
MILO & GABBY LLC v. AMAZON.COM, INC. 9

F.3d 1320, 1328 (Fed. Cir. 2013) (citation omitted); see
also Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)
(finding waiver when “counsel has made no attempt to
address the issue” because “[t]he premise of our adversar-
ial system is that appellate courts do not sit as self-
directed boards of legal inquiry and research, but essen-
tially as arbiters of legal questions presented and argued
by the parties before them”). Nevertheless, we consider
each of these issues in turn.
A. Patent Infringement Claim
On appeal, Milo & Gabby does not argue that Amazon
is liable for patent infringement based on an “offer to sell”
theory of infringement, which is the theory that it pre-
sented to the district court, both at the summary judg-
ment stage and at trial. Instead, Milo & Gabby argues
that the district court dismissed the patent infringement
claim “based on its erroneous conclusion that Amazon is
not a ‘seller’ of the accused products.” Appellants’ Br. 29.
In making this argument, Milo & Gabby relies on its
general contention that Amazon is a “seller” of the knock-
off pillowcases.
Milo & Gabby’s reliance on a “seller” theory of liability
ignores both the procedural history of this case and its
own abandonment of the theory. Although Milo & Gabby
alleged in its complaint that Amazon “sold” the products
it accused of violating its design patents, Milo & Gabby
abandoned that argument at summary judgment. In
response to Amazon’s motion for summary judgment on
patent infringement, in which Amazon argued that it had
not “sold” or “offered to sell” the accused products, J.A.
455–56, Milo & Gabby responded by arguing only that
Amazon offered to sell the products, J.A. 594–97. Sum-
mary Judgment Order, 2015 U.S. Dist. LEXIS 92890, at
*33.
“It is a general rule that a party cannot revisit theo-
ries that it raises but abandons at summary judgment.”
10 MILO & GABBY LLC v. AMAZON.COM, INC.

USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276,
1284 (9th Cir. 1994) (collecting cases) 3; see also Diversey
Lever, Inc. v. Ecolab, Inc., 191 F.3d 1350, 1352 (Fed. Cir.
1999) (concluding that a party’s failure to raise an affirm-
ative defense in opposition to a motion for summary
judgment “constituted an abandonment of the defense”);
Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 182 F.3d
888, 892 (Fed. Cir. 1999) (noting that the Eleventh Circuit
“understandably concluded that the district court properly
treated the plaintiff’s alter ego theory ‘as abandoned’ and
that the theory was ‘no longer an issue in [the] case,’”
when the defendant had moved for summary judgment on
that theory and the plaintiff failed to address it in oppos-
ing the motion). “A party abandons an issue when it has
a full and fair opportunity to ventilate its views with
respect to an issue and instead chooses a position that
removes the issue from the case.” BankAmerica Pension

3 See, e.g., Vaughner v. Pulito, 804 F.2d 873, 877 n.2
(5th Cir. 1986) (refusing to consider an Unfair Trade
Practices and Consumer Protection claim because the
party had failed to assert it as a basis for opposing a
motion for summary judgment, and “[i]f a party fails to
assert a legal reason why summary judgment should not
be granted, that ground is waived and cannot be consid-
ered or raised on appeal”); Liberles v. Cty. of Cook, 709
F.2d 1122, 1126 (7th Cir. 1983) (“It is a well-settled rule
that a party opposing a summary judgment motion must
inform the trial judge of the reasons, legal or factual, why
summary judgment should not be entered.”); Edward B.
Marks Music Corp. v. Cont’l Record Co., 222 F.2d 488, 492
(2d Cir. 1955) (“But a plaintiff in his opposition to a
motion for summary judgment cannot abandon an issue
and then, after an unpalatable decision by the trial judge,
on appeal, by drawing on the pleadings resurrect the
abandoned issue.”).
MILO & GABBY LLC v. AMAZON.COM, INC. 11

Plan v. McMath, 206 F.3d 821, 826 (9th Cir. 2000) (citing
USA Petroleum, 13 F.3d at 1282).
Here, Milo & Gabby had a full and fair opportunity to
oppose Amazon’s motion for summary judgment based on
the “seller” theory it had referenced in its complaint. Milo
& Gabby instead focused entirely on its “offer to sell”
theory in its response. Milo & Gabby’s failure to raise the
“seller” theory under 35 U.S.C. § 271 (2012) in response to
Amazon’s motion for summary judgment on that exact
issue constituted abandonment of the theory. See USA
Petroleum, 13 F.3d at 1284. Milo & Gabby cannot raise
the issue anew on appeal now that it has lost at trial on
the “offer to sell” theory.
Because Milo & Gabby does not argue in this appeal
that Amazon is liable for patent infringement based on
the “offer to sell” theory similar to that addressed at trial,
or even anything resembling such a theory, Milo & Gabby
now has waived any argument as to its “offer to sell”
theory of patent infringement. We therefore affirm the
district court’s judgment in favor of Amazon on the patent
infringement claims because Milo & Gabby has failed to
preserve either a “seller” or “offer to sell” argument for
our consideration in this case. Milo & Gabby also did not
appeal any claim regarding contributory or induced
infringement, and did not assert a claim for joint in-
fringement.
B. Copyright Infringement Claim
Milo & Gabby argues that the district court erred
when it found Amazon not liable for copyright infringe-
ment because, in its view, Amazon is liable under 17
U.S.C. § 106 (2012) as both (1) a “seller” of the accused
products, and (2) a “distributor” of the accused products.
We consider each of these in turn.
12 MILO & GABBY LLC v. AMAZON.COM, INC.

1. Milo & Gabby’s “Seller” Liability Theory
As Amazon points out, one is not liable for copyright
infringement unless it distributes copies of the copyright-
ed work “to the public . . . by sale or other transfer of
ownership.” 17 U.S.C. § 106(3). Milo & Gabby contends
that the district court erred in granting summary judg-
ment to Amazon because Amazon did sell its copyrighted
products to the public, or there is at least a material issue
of fact regarding that question to prohibit judgment as a
matter of law. Milo & Gabby asserts that the term “sale”
under § 106(3) of the Copyright Act should be given the
same meaning we give the term “sale” under the Patent
Act, 35 U.S.C. § 271. Oral Arg. at 41:50–43:25, available
at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=
2016-1290.mp3 (“[O]ur position all along . . . is that ‘sale’
is given its ordinary meaning . . . . Whether we are talk-
ing about copyright law, . . . whether we are talking about
271(a), generally ‘sale’ is the same.”). Amazon does not
dispute that the two concepts are the same. Indeed,
neither party even cites to case law—from the Ninth
Circuit or otherwise—discussing the meaning of the term
“sale” in § 106(3) of the Copyright Act, relying instead on
our case law under § 271. We agree that there are clear
parallels between the legal standards, with one caveat
noted below.
Milo & Gabby argues that the district court erred by
focusing on whether Amazon ever takes legal title to the
products sold on its website in ruling that Amazon is not a
seller of the accused products. According to Milo & Gab-
by, there are “numerous circumstances” in which a party
can be considered a seller of a product without taking
legal title to the product. Appellants’ Br. 24. In support
of its assertion, Milo & Gabby points to various sections of
the Uniform Commercial Code (“U.C.C.”), including §§ 9-
319, 2-707A, and 2-326. Milo & Gabby also attempts to
find support in the Supreme Court’s decisions in Pinter v.
Dahl, 486 U.S. 622, 642–43 (1988), and Falk v. Brennan,
MILO & GABBY LLC v. AMAZON.COM, INC. 13

414 U.S. 190, 199 (1973), and our decision in North Amer-
ican Philips Corp. v. American Vending Sales, Inc., 35
F.3d 1576, 1579–80 (Fed. Cir. 1994).
We conclude that Milo & Gabby has failed to show
that Amazon was a “seller” under 17 U.S.C. § 106 based
on its actions in this case. Turning to our case law as the
parties urge that we do, we have considered the ordinary
meaning of “sale” when addressing the term under § 271
and related patent-law provisions. See, e.g., NTP, Inc. v.
Research in Motion, Ltd., 418 F.3d 1282, 1319 (Fed. Cir.
2005). We have determined the ordinary meaning of
“sale” by looking to dictionaries and the U.C.C. as persua-
sive authority. See, e.g., id.; Halo Elecs., Inc. v. Pulse
Elecs., Inc., 769 F.3d 1371, 1379 (Fed. Cir. 2014), vacated
on other grounds, 136 S. Ct. 1923 (2016); cf. Enercon
GmbH v. Int’l Trade Comm’n, 151 F.3d 1376, 1382 (Fed.
Cir. 1998) (considering the plain meaning of “sale” when
considering the use of the term in 19 U.S.C. § 1337).
Section 2-106 of the U.C.C. defines a “sale” as consisting
of “passing of title from the seller to the buyer for a price.”
U.C.C. § 2-106(1). Section 2-103 defines “seller” as “a
person who sells or contracts to sell goods.” U.C.C. § 2-
103(1)(d). After considering dictionary definitions from
Black’s Law Dictionary and Webster’s Dictionary, we also
have explained that “the common[] or usual meaning of
the term sale includes those situations in which a contract
has been made between two parties who agree to transfer
title and possession of specific property for a price.”
Enercon, 151 F.3d at 1382; see also NTP, 418 F.3d at 1319
(considering the definition of “sale” in Black’s Law Dic-
tionary and concluding that “the ordinary meaning of a
sale includes the concept of a transfer of title or proper-
14 MILO & GABBY LLC v. AMAZON.COM, INC.

ty.”). 4 While we have made clear that our reference to the
U.C.C. is a guide only and have explained that, at least in
the context of the term “sale” under 35 U.S.C. § 102(b),
passage of title is not of “talismanic” significance, we have
found the presence or absence of passage of title to be a
significant indicator of whether a sale has occurred in the
patent law context. See Medicines Co. v. Hospira, Inc.,
827 F.3d 1363, 1375–76 (Fed. Cir. 2016).
Milo & Gabby concedes that, if direct passage of title
from Amazon to the purchasers of the “Cozy Companion”
knockoffs is a predicate to Amazon’s liability, then, in
most instances, Amazon would not qualify as a seller.
But Milo & Gabby points to the one entity—FAC Sys-
tem—that used the Fulfillment by Amazon service and
argues that Amazon is a seller in that circumstance. Milo
& Gabby also argues that the U.C.C. recognizes that sales
can occur in some instances where the seller does not hold
title.
Turning first to FAC System’s use of Amazon’s ful-
fillment service, we see no difference in Amazon’s status
in that context. Though FAC System shipped its product
to an Amazon warehouse for storage and Amazon boxed
up and shipped the product when a sale was consummat-
ed on the website, Amazon never held title to the accused
products. See J.A. 2163–64. Amazon therefore could not
sell the product on its own, even if done on behalf of the
third-party seller. J.A. 2164. The third-party seller also
could request that Amazon return the product to the
third-party seller at any time. J.A. 2163.
Amazon, moreover, did not control what information
or pictures were put on the product-detail page, nor did it

4 Black’s Law Dictionary defines “sale” as “[t]he
transfer of property or title for a price.” Black’s Law
Dictionary (10th ed. 2014).
MILO & GABBY LLC v. AMAZON.COM, INC. 15

control the price for which the product was sold. See J.A.
2136–46; J.A. 2159–61. FAC System, or other third-party
sellers as applicable to their products, controlled these
details at all times. See id. Amazon, therefore, was not
responsible for the actual listing of the product for sale,
consummating the sale, or transferring title. Instead,
Amazon merely provided an online marketplace that
third-party sellers could use to sell their products and
then, in some instances when the third-party sellers used
the additional Amazon services, shipped the products to
the final destination. Thus, while Amazon’s services
made it easier for third parties to consummate a sale, the
third parties remained the sellers. Because they are not
before us, we do not consider questions of joint infringe-
ment, contributory infringement, or induced infringe-
ment.
Milo & Gabby next points out that the general rule
that a “sale” involves the transfer of title has some excep-
tions. And, as we said in Medicines, the transfer of title
does not have “talismanic significance” when determining
whether a sale has occurred. Id. at 1376. We are unper-
suaded, however, that our general insistence on transfer
of title should be abandoned in the circumstances pre-
sented here.
Although Milo & Gabby identifies some situations in
which a court might consider a party to be a seller even
when it does not hold and transfer title to another party,
Milo & Gabby has failed to show that any of the situations
it identifies applies to Amazon. The U.C.C. sections
addressed by Milo & Gabby do not address the circum-
stances at issue here. Milo & Gabby’s argument that
Amazon is engaged in consignment sales under § 9-319 of
the U.C.C. fails on its face. Section 9-102 defines “con-
signment” as follows:
“Consignment” means a transaction, regard-
less of its form, in which a person delivers
16 MILO & GABBY LLC v. AMAZON.COM, INC.

goods to a merchant for the purpose of sale
and:
(A) the merchant:
(i) deals in goods of that kind un-
der a name other than the name of
the person making delivery;
(ii) is not an auctioneer; and
(iii) is not generally known by its
creditors to be substantially en-
gaged in selling the goods of oth-
ers;
(B) with respect to each delivery, the ag-
gregate value of the goods is $ 1,000 or
more at the time of delivery;
(C) the goods are not consumer goods
immediately before delivery; and
(D) the transaction does not create a se-
curity interest that secures an obligation.
U.C.C. § 9-102(20). Although § 9-319 would only apply if
Amazon had a consignment relationship with the third-
party sellers that meets the definition of § 9-102(20), Milo
& Gabby does not explain how Amazon’s actions meet
that definition. Instead, Milo & Gabby merely asserts
that the “sales by Amazon of the accused products are
essentially consignment sales.” Appellants’ Br. 25.
Even Amazon’s connection with FAC System through
the Fulfillment by Amazon relationship has not been
shown to meet the definition of a consignment sale.
Among other possible reasons: (1) FAC System did not
deliver the products to Amazon “for the purpose of sale”
but instead for the purpose of logistics and shipping after
a sale had been made through the website; and (2) there
is no allegation that the aggregate value of the products
MILO & GABBY LLC v. AMAZON.COM, INC. 17

would have been $1,000 or more at the time of delivery.
The commentary for this section also notes that an inter-
mediary company shipping the products, as Amazon did
here, would not be involved in a consignment agreement.
U.C.C. § 9-102 cmt. 14. Section 9-319 simply does not
apply to this case.
Milo & Gabby’s citation to Falk to suggest that a con-
signee stands in the shoes of a seller is inapposite. At
most, the case shows that, in some situations, a consignee
might be considered to be in the same position as a seller
who purchases the product before resale. See Falk, 414
U.S. at 199. But this reasoning would only apply if Milo
& Gabby could show that Amazon has a consignment
agreement with the relevant third-party seller. Milo &
Gabby has not done that.
Milo & Gabby’s reliance on U.C.C. § 2-707 is similarly
unpersuasive. Section 2-707 states that a person in the
position of a seller includes “as against a principal an
agent who has paid or become responsible for the price of
goods on behalf of his principal or anyone who otherwise
holds a security interest or other right in goods similar to
that of a seller.” U.C.C. § 2-707. As Anderson on the
U.C.C. explains, the purpose of § 2-707 is to “extend[] to
persons regarded as being in the position of the seller
certain of the remedies available to the seller. However,
U.C.C. § 2-707 does not create an additional class of
defendants who may be held liable to the buyer for breach
of the sales contract.” 4A Anderson U.C.C. § 2-707:3 (3d
ed.); see also Hart Honey Co. v. Cudworth, 446 N.W.2d
742, 744 (N.D. 1989) (“The statute does not create an
additional category of ‘sellers’ who will be liable to the
buyer upon breach of the contract.”). Milo & Gabby
cannot use this section as a sword to expand Amazon’s
liability.
Milo & Gabby’s final U.C.C. argument under § 2-326
is also unavailing. As an initial matter, Milo & Gabby
18 MILO & GABBY LLC v. AMAZON.COM, INC.

never raised § 2-326 before the district court as a basis for
arguing that Amazon was a seller of the pillowcases. See
J.A. 596–97 (raising arguments as to §§ 2-707 and 9-319
but never mentioning § 2-326). Because Milo & Gabby
raised this issue for the first time on appeal, we treat this
issue as waived. See Hillis v. Heineman, 626 F.3d 1014,
1019 (9th Cir. 2010) (citing Conn. Gen. Life Ins. Co. v.
New Images of Beverly Hills, 321 F.3d 878 (9th Cir. 2003))
(“These arguments are raised for the first time on appeal,
and because they were never argued before the district
court, we deem them waived.”).
Even if Milo & Gabby had not waived its argument,
U.C.C. § 2-326 does not apply to this case. Section 2-326
involves, inter alia, “sale or return” transactions. Under
this type of transaction, goods that a buyer obtains pri-
marily for resale may be returned by the buyer to the
seller even though they conform to the contract. U.C.C.
§ 2-326(1)(b). The official comments for this section make
clear that a sale or return “is a present sale of goods
which may be undone at the buyer’s option.” U.C.C. § 2-
326 n.1; see also Paramount Pictures Corp. v. Carol Publ’g
Grp., 25 F. Supp. 2d 372, 375 (S.D.N.Y. 1998) (“[A]lthough
a buyer retains the right to return goods, a completed sale
is generally deemed to have taken place and title passes
to the buyer.”). Even though a sale takes place between
the buyer and the seller, the seller agrees “to take back
the goods (or any commercial unit of goods) in lieu of
payment if they fail to be resold.” U.C.C. § 2-326 n.1.
This definition does not match the relationship between
Amazon and the third-party sellers here because, among
other possible reasons: (1) there is no sale of the pillow-
cases from the third-party sellers to Amazon, and
(2) there is no evidence that Amazon received the pillow-
cases with the underlying understanding that the third-
party sellers would take the products back if the products
failed to sell.
MILO & GABBY LLC v. AMAZON.COM, INC. 19

The U.C.C. sections Milo & Gabby cite provide no rea-
son for us to stray from the general U.C.C. definition that
a party must transfer title in a product to a buyer in order
to be considered a seller. Although Milo & Gabby has
shown that a party might be considered a seller or in the
same position as a seller under some circumstances even
when not transferring title, Milo & Gabby has failed to
show that any of those circumstances applies to this case.
Milo & Gabby’s reliance on Pinter and North Ameri-
can Philips does not change the analysis. In Pinter, the
Supreme Court noted that a party not holding title in a
security could be liable as a seller or offeror of unregis-
tered securities under the Securities Act of 1933, Pub. L.
No. 73-22, 48 Stat. 74. See Pinter, 486 U.S. at 642–47.
From this analysis, Milo & Gabby pulls a single sentence
to support its position: “In common parlance, a person
may offer or sell property without necessarily being the
person who transfers title to, or other interest in, that
property.” Id. at 642–43. This single sentence does not
help Milo & Gabby. Putting aside the fact that the Court
was considering an entirely different statutory scheme
and was seeking to elicit Congressional intent with re-
spect to that particular scheme, Milo & Gabby ignores
what else the Court said in Pinter. First, the Court noted
that the buyer-seller relationship in “traditional contrac-
tual privity” generally involves passing “title, or other
interest in the security, to the buyer for value.” Id. at
642.
Second, the Court said that the circumstances where
a person without title can be a seller or offeror under the
Securities Act are those where the person’s actions are
motivated by a desire to further his own financial inter-
ests—such as by receipt of a share of the profits from a
sale—or those of the seller, rather than a desire to aid the
buyer in consummating his desired purchases. In this
context, the Court made two additional points: (1) being a
substantial factor in the sale of unregistered securities is
20 MILO & GABBY LLC v. AMAZON.COM, INC.

not sufficient to render a defendant liable as a seller, and
(2) the Securities Act does not impose liability on partici-
pants whose actions are collateral to the sales transac-
tion. Milo & Gabby has not alleged that Amazon receives
profits from the sale of the pillowcases or that its motiva-
tions were anything other than creating a platform for the
benefit of both purchasers and owners to consummate
their own deals. Based on Milo & Gabby’s own allega-
tions, Amazon’s activities are more closely characterized
as collateral to the sale itself.
North American Philips is likewise unhelpful for Milo
& Gabby. Again, Milo & Gabby latches onto a single
sentence to argue that we have previously addressed and
determined that passing title “has very little to do with
the tortious act of infringement.” Appellants’ Br. 24. But
Milo & Gabby takes our statement—“Appellees have
pointed to no policy that would be furthered by according
controlling significance to the passage of legal title here,”
N. Am. Philips, 35 F.3d at 1579–80—entirely out of
context. The quoted portion of the case merely addresses
the effect of actions taken by the parties on the court’s
analysis as to whether it has personal jurisdiction over
the parties. Id. One party in the case had argued for a
test that restricted the location of an infringing act based
on the sale of a product to the location where legal title
passes from seller to buyer. Id. The court explained that
the party had “failed to explain why the criterion should
be the place where legal title passes rather than the more
familiar places of contracting and performance.” Id. at
1579. The court’s clarification as to location of infringe-
ment for personal jurisdiction purposes has no relevance
to whether a party that does not hold or pass title can be
considered a seller.
To the extent, moreover, that we have been willing to
find that a sale has occurred for some instances under the
Patent Act where title has not transferred, Milo & Gabby
has given us no reason to believe we should do the same
MILO & GABBY LLC v. AMAZON.COM, INC. 21

under the Copyright Act. While, given the absence of
briefing on the topic, we do not purport to define the
precise contours of 17 U.S.C. § 106(3), the term “sale”
under § 106(3) appears to unequivocally require a transfer
of ownership from the seller to the buyer. Grammatically,
the text combines the term “sale” with “other transfer of
ownership” between commas, indicating that the latter
phrase modifies the term “sale.”
The House Report to § 106 confirms this straightfor-
ward reading of § 106(3). H.R. Rep. No. 94-1476, at 62
(1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5676 (“As
section 109 makes clear, however, the copyright owner’s
rights under section 106(3) cease with respect to a partic-
ular copy or phonorecord once he has parted with owner-
ship of it.” (emphasis added)). Treatises discussing the
concept of sale under § 106(3) and the accompanying first
sale doctrine under § 109 of the Copyright Act are to the
same effect. In describing the first sale doctrine, Nimmer
on Copyright states:
In its core situation, Section 109(a) provides
that the distribution right may be exercised
solely with respect to the initial disposition of
copies of a work, not to prevent or restrict the
resale or other further transfer of possession
of those copies. More colloquially, once the
copyright owner first sells a copy of the work,
his right to control its further distribution is
exhausted. Moreover, although the initial
disposition of that copy may be a sale, the
identical legal conclusion applies to a gift or
any other transfer of title in the copy. There-
fore, the more accurate terminology would not
be “first sale” but rather “first authorized dis-
position by which title passes.”
2 Nimmer on Copyright § 8.12 (2017) (footnotes omitted).
As is case law. See, e.g., UMG Recordings, Inc. v. Augus-
22 MILO & GABBY LLC v. AMAZON.COM, INC.

to, 628 F.3d 1175 (9th Cir. 2011) (focusing entire analysis
of whether a first sale had occurred on the question of
whether title was transferred in some way from the
copyright owner to a third party). Thus, while we might
view § 106(3) differently in different circumstances and
upon further inquiry, we will not today depart from an
insistence that Milo & Gabby show that Amazon obtained
title to the goods at issue and transferred that title to the
third-party purchasers before we will find Amazon liable
as a seller of the copyrighted goods.
For all these reasons, we find that Milo & Gabby has
failed to provide us any reason to find that Amazon is a
seller of the pillowcases at issue. Because the third-party
sellers retain title to the pillowcases at all times and
Amazon, as relevant to this case, merely provides an
online marketplace followed by logistical and shipping
services after the third-party seller has completed its
transaction with a buyer, Amazon is not a seller in this
case for the purposes of copyright infringement under 17
U.S.C. § 106.
2. Milo & Gabby’s “Distributor” Liability Theory
Milo & Gabby next contends that, “regardless of
whether or not Amazon acts as a ‘seller’ (it does), there is
no dispute that Amazon is liable for copyright infringe-
ment because it acts as a distributor of the infringing
products and physical images.” Appellants’ Br. 31. Milo
& Gabby asserts that the Fulfillment by Amazon service
constitutes infringement of its exclusive right to distrib-
ute copies of the copyrighted work by “sale” or “other
transfer of ownership” under 17 U.S.C. § 106(3). As
addressed above, Milo & Gabby has failed to show that
the Fulfillment by Amazon service constitutes a “sale” of
the accused products in this case. Its “distributor” theory,
therefore, depends on its argument that Amazon’s actions
meet the “other transfer of ownership” aspect of the
statute and that such transfers need not include the
MILO & GABBY LLC v. AMAZON.COM, INC. 23

passage of title by the party allegedly effectuating the
transfer.
After discussing alleged admissions by Amazon that it
shipped the accused products for FAC System, the only
third-party seller to use the Fulfillment by Amazon
service, Milo & Gabby includes a single sentence address-
ing “other transfer of ownership” in its opening brief.
Milo & Gabby states, “[a]lternatively, the transactions
performed by Amazon easily constitute an ‘other transfer
of ownership’ as contemplated under the Copyright Act.”
Appellants’ Br. 34. In its initial brief, Milo & Gabby
makes no attempt to explain what “other transfer of
ownership” means, what constitutes an “other transfer of
ownership,” or how and why Amazon’s conduct falls
within the meaning of “other transfer of ownership.” Its
reply brief fares little better, as it only asserts that prin-
ciples of statutory construction require that all clauses of
a statute be given meaning and not rendered superfluous
to the extent possible. Appellants’ Reply Br. 24–26.
Using this premise, Milo & Gabby contends that “other
transfer of ownership” must have a broader, or at least
different, definition than “sale,” but Milo & Gabby still
makes no attempt to give meaning to the clause.
Milo & Gabby’s conclusory and passing reference to
“other transfer of ownership” in its opening brief does not
amount to a substantive argument that brings the issue
before the court. See SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (collecting
cases from the First, Second, Third, Sixth, and Seventh
Circuits). Because our law is well established that an
argument must be raised in a party’s opening brief and
Milo & Gabby failed to raise this argument adequately in
its opening brief, we consider this argument waived. See
id. at 1319–20.
We note, moreover, that, based on the authorities cit-
ed above, whatever the phrase “other transfer of owner-
24 MILO & GABBY LLC v. AMAZON.COM, INC.

ship” might mean, it too would seem to require an actual
transfer of title from the distributor to the recipient. See
2 Nimmer on Copyright § 8.12.
C. Palming Off Claim
In dismissing the false designation of origin claim
brought under the Lanham Act, the district court noted
that Milo & Gabby raised arguments regarding palming
off violations for the first time in response to Amazon’s
motion for summary judgment. Summary Judgment
Order, 2015 U.S. Dist. LEXIS 92890, at *32. Federal Rule
of Civil Procedure 8 requires a “short and plain statement
of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). The intent of this requirement is
to “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)).
Milo & Gabby argues that the district court erred in
granting summary judgment on the palming off claim
because the complaint contained sufficient factual allega-
tions to put Amazon on notice of this claim. But Milo &
Gabby never mentioned a palming off allegation or theory
in its complaint. Indeed, Paragraph 36 of the complaint
specifies that Milo & Gabby asserted their Lanham Act
claim as a false designation of origin claim, not as a
palming off claim. J.A. 157. A false designation of origin
claim is broader than a palming off claim. See Summit
Mach. Tool Mfg. Corp. v. Victor CNC Sys., 7 F.3d 1434,
1437 (9th Cir. 1993) (“[T]he Lanham Act has progressed
far beyond the old concept of fraudulent passing off, to
encompass any form of competition or selling which
contravenes society’s current concepts of ‘fairness.’” (in-
ternal quotation marks omitted) (quoting Smith v. Monto-
ro, 648 F.2d 602, 604 (9th Cir. 1981)). Milo & Gabby’s
broad allegations of confusion, mistake, and deception
under the umbrella of a false designation of origin claim
MILO & GABBY LLC v. AMAZON.COM, INC. 25

would not provide Amazon notice in the complaint that
Milo & Gabby was pursuing a palming off claim.
Faced with the prospect that it did not adequately
plead its palming off claim, Milo & Gabby attempts to
save the claim by pointing to evidence outside the com-
plaint. First, Milo & Gabby argues that it described its
Washington state law unfair competition claim as a
palming off claim in its opposition to Amazon’s motion to
dismiss. It asserts that an unfair competition claim
under Washington state law is “essentially the same
cause of action” as a palming off claim under the Lanham
Act, Appellants’ Br. 39, so it had “explicitly identified its
legal theory based on [facts in the complaint] in its early
pleading-stage filings,” Appellants’ Br. 41. Milo & Gabby
also argues that Amazon understood that it faced a palm-
ing off claim based on a time entry made by Amazon’s
counsel that came to light after the court awarded fees to
Amazon.
Milo & Gabby’s resort to sources outside the com-
plaint does not meet Milo & Gabby’s legal requirement
under Rule 8. The complaint, as opposed to some other
brief or court filing, must be the document to contain the
plain statement of the claim. See, e.g., ABB Turbo Sys.
AG v. TurboUSA, Inc., 774 F.3d 979, 984 (Fed. Cir. 2014)
(“Rule 8(a)(2) requires . . . that the complaint give the
defendant fair notice . . . .” (emphasis added) (internal
quotation marks omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007))). Milo & Gabby had
to point to evidence in the complaint itself showing that it
asserted a palming off theory under the Lanham Act.
Because we conclude that the complaint’s general allega-
tions regarding a false designation of origin claim did not
put Amazon on notice of an intent to pursue a palming off
claim, we affirm the district court’s dismissal of this
claim.
D. Attorney’s Fees
26 MILO & GABBY LLC v. AMAZON.COM, INC.

Milo & Gabby argues that the court should overturn
the district court’s award of attorney’s fees under the
Lanham Act if it vacates the district court’s dismissal of
the Lanham Act claim. According to Milo & Gabby,
reinstatement of the claim would mean that Amazon
would no longer be a “prevailing party” under the Lan-
ham Act such that an award of attorney’s fees would be
improper.
Because we find that the district court did not err in
dismissing Milo & Gabby’s palming off claim and Milo &
Gabby made no separate argument regarding the fee
award, we affirm the district court’s award of attorney’s
fees. 5
IV. CONCLUSION
For the foregoing reasons, we affirm the district
court’s judgment in this case.
AFFIRMED

5 Moreover, district court orders granting sanctions
or attorney’s fees are “separate order[s] which [are] not
final and appealable until the district court has decided
the amount.” Orenshteyn v. Citrix Sys., Inc., 691 F.3d
1356, 1358 (Fed. Cir. 2012) (citation omitted). Because
the district court has not ruled on the amount of the fee
award, see Milo & Gabby, LLC v. Amazon.com, Inc., No.
C13-1932RSM, 2015 WL 11234165 (W.D. Wash. Oct. 5,
2015), Milo & Gabby’s challenge to the award of attorney’s
fees would be premature even if we were to find that the
district court had erred in dismissing the Lanham Act
claim.