FILED
NOT FOR PUBLICATION
SEP 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VBS DISTRIBUTION, INC., a California No. 17-55198
corporation, AKA VBS Home Shopping;
VBS TELEVISION, a California D.C. No.
corporation, 8:16-cv-01553-CJC-DFM
Plaintiffs-Appellants,
MEMORANDUM*
v.
NUTRIVITA LABORATORIES, INC., a
California corporation; NUTRIVITA,
INC., a California corporation; US
DOCTORS CLINICAL INC., a California
corporation; ROBINSON PHARMA,
INC., a California corporation; KVLA,
INC., a California corporation; TUONG
NGUYEN, an individual domiciled in
California; TRAM HO, an individual
domiciled in California; JENNY DO, an
individual domiciled in California, aka
Ngoc Nu; DOES, 1-10 Inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted August 29, 2017
Pasadena, California
Before: W. FLETCHER and IKUTA, Circuit Judges, and FREUDENTHAL,**
Chief District Judge.
VBS Distribution, Inc. and Joseph Nguyen (collectively, VBS) appeal the
district court’s order denying VBS’s motion for preliminary injunction. We have
jurisdiction under 28 U.S.C. § 1292(a)(1), and we reverse and remand.
The district court erred in holding that because the overall configuration of
VBS’s live auction television show was functional, VBS failed to carry its burden
of showing a likelihood of success on the merits of its trade dress infringement
claim. As with restaurants’ trade dress infringement claims, VBS can claim
protectable trade dress in the overall look and feel of VBS’s live auction show,
regardless whether individual elements that constitute part of the claimed trade
dress are functional. See Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252,
1259 (9th Cir. 2001).
The record shows that VBS’s customer list contains identifying information
that is not readily accessible to the public or to other businesses, including
purchase histories, methods of payment, and amounts of payment. Moreover,
**
The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
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because VBS has listed individuals who have already expressed an interest in
purchasing jewelry from an auction television show, the customer list has
independent economic value to VBS’s competitors. See MAI Sys. Corp. v. Peak
Computer, Inc., 991 F.2d 511, 521 (9th Cir. 1993). Therefore, the district court
erred in rejecting VBS’s trade secret misappropriation claim on the ground that
VBS failed to show that a reasonably diligent competitor could not readily obtain
the information in the customer list.
The district court erred in holding that VBS failed to present sufficient
evidence that Nutrivita’s advertising was literally false with respect to two of the
challenged statements. See Southland Sod Farms v. Stover Seed Co., 108 F.3d
1134, 1139 (9th Cir. 1997). First, Nutrivita’s advertising claim that Arthro-7 was
“100% herbal” was contradicted by Arthro-7’s own ingredient list, which includes
animal products; there is no evidence in the record that “herbal” means something
other than “of, relating to, or made of herbs,” Webster’s New International
Dictionary 1058 (3rd ed. 1993) in the supplement industry. Second, VBS’s claim
that Nutrivita’s advertising statement, “8 Million Bottles Sold,” is literally false is
essentially undisputed by Nutrivita; indeed, its CEO admitted there was no basis
for this claim. Nutrivita’s advertising statement, “Doctor Recommended,”
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however, is not literally false, and VBS provided no evidence to substantiate its
claim that the statement would be misleading to the public.
Because the district court erred in analyzing VBS’s claims of trade dress
infringement, trade secret misappropriation and false advertising, we reverse and
remand to the district court to reconsider the elements of the preliminary injunction
analysis in light of this disposition. See Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 22 (2008); All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th
Cir. 2011).
REVERSED AND REMANDED.
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