In Eat Right Foods Ltd. v. Whole Foods, Inc., No. 15-35524 (9th Cir. 2018), the Ninth Circuit vacated the district court’s grant of summary judgment in favor of Whole Foods, and remanded for further proceedings, as it found the reasonableness of Eat Right Foods Ltd. (ERF)’s delay in filing suit was an issue of material fact. ERF had originally sold cookies under the brand “EatRight” to Whole Foods. Upon discovering Whole Foods’ use of the mark “EatRight America” on various food products, ERF requested that Whole Foods purchase the rights to the brand “EatRight.” After unsuccessful attempts to negotiate over the course of three years, ERF sued Whole Foods for trademark infringement. The district court had granted Whole Foods summary judgment as it found that ERF’s delay in filing suit was not reasonable.