KWAN SOFTWARE ENGINEERING, INC V. FORAY TECHNOLOGIES, LLC, No. 13-15165 (9th Cir. 2013)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 27 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KWAN SOFTWARE ENGINEERING, INC., a California corporation, DBA Veripic, Inc., No. 13-15165 D.C. No. 3:12-cv-03762-SI Plaintiff - Appellant, MEMORANDUM* v. FORAY TECHNOLOGIES, LLC, a Delaware limited liability company, Defendant - Appellee. Appeal from the United States District Court for the Northern District of California Susan Illston, Senior District Judge, Presiding Argued and Submitted November 4, 2013 San Francisco, California Before: REINHARDT, NOONAN, and WATFORD, Circuit Judges. Kwan Software Engineering, Inc., dba VeriPic, Inc. ( Veripic ) appeals the district court s order denying its motion to preliminarily enjoin Foray * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Technologies, LLC ( Foray ) from making certain public representations that allegedly constitute false advertising under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under California law, Cal. Bus. & Prof. Code § 17500. We have appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and review the denial of a preliminary injunction for abuse of discretion. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). On the record before it, the district court did not abuse its discretion, and we accordingly affirm. 1. The district court did not abuse its discretion in determining that Veripic failed to prove a likelihood of success on its false advertising claims. Contrary to Veripic s protestations, the district court properly held that Veripic had failed to make a threshold showing of literal falsity. Given its context and the sophisticated nature of the consumer market, Statement One1 was likely not misleading. Statements Two and Three regarding authenticity were both ambiguous and Veripic s evidence at this stage of the case did not persuasively indicate that there is a singular definition of authenticity as that term is understood by law enforcement customers. 1 We refer to the statements in the order they were addressed by the district court. -2- 2. Nor did the district court abuse its discretion in denying the preliminary injunction as to the other issues raised, because irreparable harm is unlikely. See Cottrell, 632 F.3d at 1135 (discussing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 19-24 (2008)). Veripic offered only speculative evidence of the loss of prospective customers, business goodwill, and market share. 3. We need not decide whether the district court abused its discretion in denying Veripic s motion for leave to file supplemental evidence because Veripic has not shown that the failure to admit the supplemental evidence was prejudicial. Cf. McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003) (requiring a showing that the lower court s error was prejudicial in the context of an evidentiary ruling at trial). 4. Finally, we have reviewed Veripic s other claims of error and find none. AFFIRMED. -3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
