Plaintiff, a sports nutrition company, was in the business of manufacturing nutritional and dietary supplements. Plaintiff sued Defendants, alleging violations of state law and the Lanham Act, based on Defendants’ sale of Plaintiff’s products. In response to Defendants’ motion to dismiss, Plaintiff argued that the first sale doctrine did not apply because Defendants misrepresented themselves as authorized dealers of Plaintiff’s products and sold Plaintiff’s products at “excessively discounted prices.” The court was not moved by Plaintiff’s arguments, and the court held that Plaintiff failed to state a claim for trademark infringement, unfair competition, or false designation of origin under the Lanham Act. Plaintiff made only a “mere conclusory statement that [one Defendant] represented itself” as an agent of Plaintiff, which did not support a trademark infringement claim. Moreover, Plaintiff’s allegation that Defendants were selling Plaintiff’s products for 50% below retail price was not trademark infringement and did not overcome the first sale doctrine. The court also dismissed Plaintiff’s state law claims for trademark infringement and unfair competition for the aforementioned reasons. However, the court gave Plaintiff the opportunity to replead those claims.
