Regalo International LLC v. Aborder Products Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

REGALO INTERNATIONAL LLC et al., §

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Plaintiffs, §

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v. § Civil Action No. 3:24-CV-03270-E

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ABORDER PRODUCTS INC, §

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Defendant. §

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MEMORANDUM OPINION AND ORDER

Before the Court is (i) Defendant Aborder Products, Inc.’s (“Aborder”) Motion to Dismiss.

(ECF No. 19); (ii) Plaintiffs Regalo International LLC, and Carlson Pet Products Inc.’s

(collectively “Regalo”) Motion for Preliminary Injunction, (ECF No. 13); (iii) Aborder’s Motion

for Leave to File Sur-Reply (ECF No. 24); (iv) Regalo’s Varius Motions for Hearing, (ECF Nos.

27; 40; 42); and (v) Regalo’s Unopposed Motion to Withdraw ECF No. 40, (ECF No. 41). After

reviewing the motions, briefing, and applicable law, the Court GRANTS in part and DENIES in

part Aborder’s Motion to Dismiss, (ECF No. 19); DEFERS Regalo’s Motion for Preliminary

Injunction, (ECF No. 13); DENIES Aborder’s Motion for Leave to File Sur-Reply, (ECF No. 24);

DENIES Regalo’s Motions for Hearing, (ECF No. 27; 40; 42); and GRANTS Regalo’s Motion

to Withdraw ECF No. 40, (ECF No. 41).

I. BACKGROUND

A. Dispute and Parties

This case arises from a dispute involving pet and baby gates. Regalo alleges that for over

twenty-five years they have developed, produced, and marketed their gate products, and as a result

of their extensive work, have obtained more than “four hundred United States patents that cover

many novel and unique aspects of its line of products[.]”. (ECF No. 1 at 5-6) (emphasis removed).

Regalo alleges that Aborder, under the product names “Cumbor” and “InnoTruth”, offers to sell,

and does sell, competing gate products on Amazon. (ECF No. 1 at 7-8). Regalo alleges that these

gate products are “knock-offs of Plaintiffs’ patented safety gates” and are “marketed the same [as

Regalo’s gates] by misusing Plaintiffs’ copyrighted photographs and federally registered

trademarks and otherwise engaging unlawful, unfair competition.” (ECF No. 1 at 11).

B. Procedural History

On December 30, 2024, Regalo filed the instant case asserting the following causes of

action: (i) copyright infringement, (ii) trademark infringement, (iii) false advertising, (iv) unfair

competition, (v-vii) patent infringement. (ECF No. 1). On February 3, 2025, Regalo filed its

Motion for Preliminary Injunction seeking to prohibit continued patent infringement. (ECF No.

13). On February 28, 2024, Aborder filed a Motion to Dismiss—which seeks to dismiss claims

(ii)-(vii) under Federal Rule of Civil Procedure 12—arguing that Regalo has failed to state a claim

upon which relief can be granted. (ECF No. 19 at 5); see Fed. R. Civ. P. 12(b)(6). All motions are

fully briefed. (ECF No. 14; 16; 19; 23; 25; 26). Therefore, the Motions are ripe for adjudication.

II. LEGAL STANDARD

A. 12(b)(6) Motion to Dismiss

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must include “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). If a

plaintiff fails to satisfy Rule 8(a), the defendant may file a Rule 12(b)(6) motion to dismiss for

“failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a

Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial

plausibility when the plaintiff pleads factual content that allows the courts to draw the reasonable

inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice. Iqbal, 556 U.S. at 678.

In considering a Rule 12(b)(6) motion to dismiss, “the court must accept all well-pleaded

facts in the complaint as true and view them in the light most favorable to plaintiff.” Walker v.

Beaumont Indep. Sch. Dist., 938 F.3d 724, 725 (5th Cir. 2019). The court's review is limited to the

complaint, any documents attached to the complaint, and any documents attached to the motion to

dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.),

L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citation omitted).

B. Preliminary Injunction

A preliminary injunction is “an extraordinary remedy.” Miss. Power & Light Co. v. United

Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). To obtain injunctive relief, a movant must

establish (1) a substantial likelihood that the movant will prevail on the merits; (2) a substantial

threat that irreparable harm will result if the injunction is not granted; (3) that the threatened injury

outweighs the threatened harm to the defendant; and (4) that granting the preliminary injunction

will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987) (citing

Canal Auth. v. Callaway, 489 F.2d 567, 572–73 (5th Cir. 1974)). “The decision to grant or deny a

preliminary injunction is discretionary with the district court.” Miss. Power & Light Co., 760 F.2d

at 621. A plaintiff is not required to prove its entitlement to summary judgment in order to establish

a substantial likelihood of success on the merits for preliminary injunction purposes. Byrum v.

Landreth, 566 F.3d 442, 446 (5th Cir. 2009). But the movant must make a clear showing that the

injunction is warranted, and the issuance of a preliminary injunction “is to be treated as the

exception rather than the rule.” Miss. Power & Light Co., 760 F.2d at 621.A preliminary injunction

“is appropriate only if the anticipated injury is imminent and irreparable,” Chacon v. Granata, 515

F.2d 922, 925 (5th Cir. 1975), and not speculative. ADT, LLC v. Cap. Connect, Inc., 145 F. Supp.

3d 671, 694 (N.D. Tex. 2015); see also Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992,

997 (5th Cir. 1985) (“Speculative injury is not sufficient” to show irreparable harm.). “In general,

a harm, is irreparable where there is no adequate remedy at law, such as monetary damages.”

Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011). But money damages may not be adequate in

special circumstances such as where a decision on the merits would not be possible without an

injunction. Janvey, 647 F.3d at 600. The party seeking preliminary injunctive relief carries the

burden of persuasion on all four elements. Bluefield Water Ass'n, Inc. v. City of Starkville, 57 F.3d

250, 253 (5th Cir. 2009).

III. ANALYSIS

a. Motion to Dismiss

i. Motion to Strike Pursuant to Court Policies and Procedures

As an initial matter, Regalo argues that Aborder’s Motion to Dismiss should be stricken

because, “Aborder [has] failed to comply with the Court’s Standing Order and provide the requisite

prior notice of all its alleged grounds for dismissal[.]” (ECF No. 25 at 11). Regalo acknowledges

that Aborder did provide written notification of its intent to file the instant dismissal but argues

that the notice “only partially advised [Regalo] of Aborder’s alleged deficiencies and bases of its

motion.” (ECF No. 25 at 12). At issue is a provision of the Court’s Standing Order requiring

conference and notice prior to filing a motion to dismiss. The relevant language states:

Counsel shall confer with opposing counsel and provide written

notice prior to filing a Federal Rule 12(b)(6) Motion to Dismiss:

To facilitate the efficient progression of litigation, a party or counsel

who anticipates filing a Motion to Dismiss under Federal Rule

12(b)(6) must first confer with opposing counsel concerning the

proposed deficiencies and the expected basis of the Motion. This

conference shall include written (email or certified mail) notification

of the Plaintiff’s right to amend the pleading under these procedures,

specifying the proposed deficiencies and the deadlines below.

Local Procedures of United States District Court Judge Ada E. Brown for the Northern District of

Texas (N.D. Tex.), rule II(C)(1) (emphasis in original). It is the intention of the Court that parties

will utilize this procedure to facilitate the efficient progression of litigation and is not intended to

compel a moving party to divulge every basis for which they will seek dismissal. Accordingly, the

Court concludes that Aborder has sufficiently complied with the Court’s Procedures and DENIES

Regalo’s embedded Motion to Strike. (ECF No. 25 at 11).

ii. Trademark Infringement and False Advertising

Counts Two and Three of Regalo’s Petition asserts claims under the Lanham Act,

specifically: (i) trademark infringement, and (ii) false advertising. (ECF No. 1 at 18-31). Regalo

also asserts trademark infringement under Texas Common Law. (ECF No. 1 at 18).

1. Trademark Infringement

To successfully plead a claim for trademark infringement under 15 U.S.C. § 1114, two

elements must be adequately alleged: (1) the plaintiff “possesses a legally protectable trademark”

and (2) the defendant's “use of this trademark ‘creates a likelihood of confusion as to source,

affiliation, or sponsorship.’” Streamline Prod. Sys., Inc. v. Streamline Mfg., Inc., 851 F.3d 440,

450 (5th Cir. 2017) (quoting Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536

(5th Cir. 2015)); see also Jim S. Adler, P.C. v. McNeil Consultants, L.L.C., 10 F.4th 422, 426 (5th

Cir. 2021) (employing this inquiry within the motion to dismiss framework). Because the issues

in a trademark infringement claim are the same under Texas common law and the Lanham Act,

the Court will analyze the motion to dismiss both claims under the Lanham Act standards. All Am.

Builders, Inc. v. All Am. Siding of Dallas, Inc., 991 S.W.2d 484, 488 (Tex. App.—Fort Worth

1999, no pet.) (“The issues in a common law trademark infringement action under Texas law are

no different than those under federal trademark law.”).

“To be legally protectable [under the first element], a mark must be distinctive in one of

two ways”: (1) inherent distinctiveness or (2) acquired distinctiveness. Nola Spice Designs, 783

F.3d at 537. The registration of marks with the United States Patent and Trademark Office

(“USPTO”) is “prima facie evidence that the marks are inherently distinctive.” Nola Spice Designs,

783 F.3d at 537. However, this presumption of legal validity accorded to a federally registered

trademark may be rebutted by a contrary showing “that the mark is not inherently distinctive.”

Streamline, 851 F.3d at 451 (cleaned up). Here, it is uncontested that Regalo has utilized the marks

“REGALO” and “CARLSON PET PRODUCTS” for decades and were “granted federal trademark

registration” to both marks on or about July 7, 1998. (ECF No. 1 at 22). Accordingly, they serve

as “prima facie evidence that the marks are inherently distinctive” such to satisfy the first prong of

a trademark infringement claim. Nola Spice Designs, 783 F.3d at 537.

Under the second element, the “[l]ikelihood of confusion” as to the source, affiliation, or

sponsorship of a legally protectable trademark must be “more than a mere possibility of confusion.

Streamline, 851 F.3d at 453. Rather, “the plaintiff must demonstrate a probability of confusion”

spawned by the defendant's use. Streamline, 851 F.3d at 453. This is “the gravamen for any action

of trademark infringement.” Adler, 10 F.4th at 426. Courts examine the following non-exhaustive

factors, or “digits of confusion,” to evaluate whether there exists a probability of confusion: “(1)

the type of trademark; (2) mark similarity; (3) product similarity; (4) outlet and purchaser identity;

(5) advertising media identity; (6) defendant's intent; (7) actual confusion; and (8) care exercised

by potential purchasers.” Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 227 (5th Cir.

2009). “No single factor is dispositive, and a finding of a likelihood of confusion need not be

supported by a majority of the factors.” Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll.

v. Smack Apparel Co., 550 F.3d 465, 578 (5th Cir. 2008) (citation omitted). Moreover, “the digits

may weigh differently from case to case, depending on the particular facts and circumstances

involved.” Xtreme Lashes, 576 F.3d at 227.

Aborder argues that Regalo has not sufficiently pled a likelihood of confusion and

accordingly, Regalo’s trademark infringement claim should be dismissed. (ECF No. 19 at 12).

Specifically, Aborder contends that the use of trademark advertising through the purchase of

Amazon sponsored ads cannot constitute trademark infringement without additional actions, and,

as such, Regalo’s bald accusations do not give rise to trademark infringement.1 (ECF No. 19 at

10-11); Adler, 10 F.4th at 429. Regalo responds that their pleadings are sufficient under the Fifth

Circuit’s holding in Adler because, “[w]here there is additional behavior that alleges initial interest

confusion, the pleading burden is met.” (ECF No. 25 at 15) (emphasis added).

In Adler, the Fifth Circuit first addressed “initial interest confusion” in the context of

search-engine advertising. Adler, 10 F.4th at 427. In that case, Adler, a personal injury attorney,

alleged trademark infringement, through initial interest confusion, caused by the defendant’s

purchases of Adler’s trademarked words in Google keyword advertisements. Adler, 10 F.4th at

425. The defendant in that case bid “increasingly higher amounts to ensure her advertisements

appear[ed] next to or before Adler’s advertisements[]”—the infringing advertisements did “not

identify a particular lawyer or law firm as the source of the advertisement. Instead, the

1 “[T]rademark advertising” in this context refers to Aborder’s purchase and use of Aborder’s trademarked

keywords in connection with its Amazon search advertisements. (ECF No. 19 at 9).

advertisements are designed to display generic terms that consumers might associate with any

personal injury firm.” Adler, 10 F.4th at 425. In that case, defendant’s advertisements were “click

to call” advertisements, meaning “if a user clicks on the advertisement using a mobile phone, the

advertisement causes the user’s phone to make a call rather than visit a website.” Adler, 10 F.4th

at 425. Once the potential consumer was connected through the click to call advertisement, the

defendant’s representatives answered the telephone using a generic greeting and kept confused

consumers on the phone to build rapport and “ultimately convince [the consumer] to engage”

defendant’s services instead of Adler’s. Adler, 10 F.4th at 425. The Fifth Circuit, adopting the

Ninth Circuit’s analysis, explained that “it would be wrong to expand the initial interest confusion

theory of infringement beyond the realm of the misleading and deceptive to the context of

legitimate comparative and contextual advertising.” Adler, 10 F.4th at 428. Relying on the author

of a leading treatise, the Fifth Circuit included an analogy for clarification:

[A]ssume that [a] person shopping for a car types in a search engine

the word TOYOTA and finds on the search results web page a

clearly labeled advertisement for VOLKSWAGEN. This occurred

because, hypothetically, Volkswagen purchased from the search

engine the keyword “Toyota.” If that computer user then ultimately

decides to buy a VOLKSWAGEN instead of a TOYOTA, that is not

a purchase made by mistake or as a result of confusion. If that ad

and link is clearly labeled as an advertisement for VOLKSWAGEN,

it is hard to see how the web user and potential car buyer is likely to

be confused by the advertising link.

J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION

§ 25A:8 (5th ed. 2021 Update). Under this framework, the Fifth Circuit ultimately held that Adler’s

pleadings were sufficient to survive the motion to dismiss stage because,

Adler made specific factual allegations describing how the use of

the Adler marks as keyword terms — combined with generic,

unlabeled advertisements and misleading call-center practices —

caused initial interest confusion. This pleading included factual

matter beyond the mere purchase of trademarks as keywords for

search-engine advertising, and the district court should have

considered those allegations.

Adler, 10 F.4th at 429.

Here, the Complaint alleges that “Aborder has purchased the keywords REGALO and

CARLSON in connection with Amazon’s sponsored ads” such that it is “likely to cause confusion,

mistake, and deception among the general purchasing public as to the origin of Aboder’s [] gates

and is likely to deceive the public into believing that these [] gates originate from, are associated

with, or are otherwise authorized by [Regalo], all to the damage and detriment of [Regalo’s]

reputation, goodwill, and sales.” (ECF No. 1 at 23-24). Regalo argues two specific actions in

furtherance of their Adler based initial interest confusion claim: (i) Aborder’s gates are visually

similar to Regalo’s gates, and (ii) Aborder’s marketing photos “create product presentations that

are confusingly similar to [Regalo’s] product listings.” (ECF No. 25 at 16) (citing ECF No. 1 at 8-

9, 14-17, 20, 23-26).

In the complaint, Regalo alleges that their gates have “contoured shaped bars [which] are

nonfunctional,” and that Aborder “sells gates having the very same contoured bars.” (ECF No. 1

at 24-25). Because of this similarity in gate contours, Regalo baldly concludes that it “create[s] a

likelihood of confusion between the parties’ respective gate products.” (ECF No. 1 at 25). The

complaint, similarly, baldly concludes that “[t]he likelihood of confusion caused by Defendant

Aborder’s misuse of Plaintiffs’ trademarks is aggravated by its copying and infringing Plaintiffs’

copyrighted photographs, which create product presentations that are confusingly similar to those

of Plaintiffs.” (ECF No. 1 at 26). However, these claims, as pled, are insufficient to show a

likelihood of confusion which is “[t]he gravamen for any action of trademark infringement.” Adler,

10 F.4th at 426. Regalo does not allege that Aborder’s purchased keyword ads are unlabeled or

that, upon clicking on the advertisement, customers are linked to deceptively generic purchase

pages. To the contrary, Regalo alleges, regarding these ads that, “[m]any times, it is not

immediately obvious from the sponsored ad who is selling the advertised product[,]” and that

“[w]hen customers ‘click’ or select a sponsored ad, they are taken to the advertised product’s detail

page.” (ECF No. 1 at 20). Put another way, when a customer clicks on the advertisement, they are

directed to the product page for Aborder’s advertised products— Regalo’s general statements that

“many times” the sponsored ads do not immediately make clear who the seller is does not allege

that in the specific ads purchased by Aborder are unlabeled or misleading.

Accordingly, as here, where “the factual allegations regarding consumer confusion are

implausible … a district court may dismiss a complaint on the basis that a plaintiff failed to allege

a likelihood of confusion.” Adler, 10 F.4th at 428-29 (See, e.g., Eastland Music Grp., LLC v.

Lionsgate Ent., Inc., 707 F.3d 869, 871 (7th Cir. 2013); Murray v. Cable Nat’l Broad. Co., 86 F.3d

858, 860-61 (9th Cir. 1996). Thus, the Court GRANTS Aborder’s Motion to Dismiss as to Count

Two—the Trademark Infringement Claim. (ECF No. 1 at 18-27).

2. False Advertising

To successfully plead a claim for False Advertising under 15 U.S.C. § 1125(a)(1)(B), five

elements must be adequately alleged:

(1) false or misleading statement of fact about a product;

(2) the statement deceived or had the capacity to deceive a

substantial segment of potential consumers;

(3) the deception was material;

(4) the product is in interstate commerce; and

(5) the plaintiff has been or is likely to be injured as a result of the

statement at issue.

Schlotzsky’s Ltd. v. Sterling Purchasing & Nat’l Distribution Co., 520 F.3d 393, 400 (5th Cir.

2008). A statement of fact makes “a specific and measurable claim, capable of being proved false

or of being reasonably interpreted as a statement of objective fact.’’ Pizza Hut, Inc. v. Papa John’s

Int’l, Inc., 227 F.3d 489, 495 (5th Cir. 2000). On the other hand, “generalized positive statements

about a company's progress are not a basis for liability.” Nathenson v. Zonagen Inc., 267 F.3d 400,

419 (5th Cir. 2001) (citing Lasker v. New York Elec. & Gas Corp., 85 F.3d 55, 59 (2d Cir. 1996)

(“[B]road, general statements” are “precisely the type of ‘puffery’ that this and other circuits have

consistently held to be inactionable”)). The Fifth Circuit defines puffery as “(1) exaggerated,

blustering, and boasting statements] upon which no reasonable buyer would be justified in relying;

or (2) a general claim of superiority over comparable products that is so vague that it can be

understood as nothing more than mere expression of opinion.” Pizza Hut, 227 F.3d at 497.

Regalo’s allegations of false advertising by Aborder fall into two categories: (i) non-

authentic customer reviews, and (ii) systematic removal of negative reviews. (ECF No. 1 at 28-

29). Aborder asserts that Regalo has not “allege[d] facts that rise above the speculative level

showing that the reviews are fake or that [Aborder] manipulates reviews,” and thus, should be

dismissed. (ECF No. 19 at 15). Regalo argues that, though Aborder has had the opportunity to do

so, it has not contested the allegations, and thus, “Aborder’s refusal to deny the claims raises an

adverse inference itself sufficient to defeat Aborder’s motion to dismiss.” ECF No. 25 at 18).

In support of its contention that Aborder is engaged in false advertising through non-

authentic customer reviews, Regalo alleges the following statements:

101. On information and belief, the reviews associated with

Defendant Aborder’s Cumbor products are not from consumers, but

actually from either Aborder itself or from a third-party acting on

Aborder’s behalf to invent reviews which are, for various reasons,

not authentic.

102. Defendant Aborder’s practice of generating reviews is

evidenced by the fact that a majority of Cumbor’s reviews are rated

with a scale of 1-5 without any comments, and nearly all of them

positive.

103. On information and belief, in addition to being non-

authentic, over twenty of those reference Regalo and virtually all of

them disparage or denigrate Regalo. On information and belief,

Defendant Aborder, or someone acting on Aborder’s behalf, is

writing reviews which denigrate or disparage Plaintiffs’ products.

These misleading and false reviews constitute, inter alia, trade

disparagement.

(ECF No. 1 at 28-29). Regalo’s allegations in its complaint, taken as true, do not plausibly meet

the required elements of a false advertising claim. Specifically, Regalo does not allege any

statements with particularity as to satisfy prong one of a false advertisement—a “false or

misleading statement of fact about a product.” Schlotzsky’s Ltd., 520 F.3d at 400. Aborder

acknowledges in their motion to dismiss that “[Regalo] [is] correct in stating that fake reviews and

review manipulation can be false advertising. (ECF No. 19 at 15) (citing Stonecoat of Texas, LLC.

v. ProCal Stone Design, LLC, No. 4:17-CV-303, 2019 WL 5391178, *45 (E.D. Tex. Aug. 12,

2019), report and recommendation adopted in part, rejected in part, 426 F.Supp.3d 311 (E.D. Tex.

2019). However, Regalo’s bare allegation that some of Aborder’s product reviews are not from

consumers because “a majority of Cumbor’s reviews are rated with a scale of 1-5 without any

comments” is insufficient.2 Likewise, the mention of Regalo in the reviews of Aborder’s products

does not plead a false or misleading statement of fact. Scholtzsky’s Ltd., 520 F.3d at 400. In sum,

Aborder’s claims do not “raise a right to relief above the speculative level,” and therefore cannot

survive a motion to dismiss. Twombly, 550 U.S. at 555.

In support of its contention that Aborder is engaged in false advertising through systematic

removal of negative reviews, Regalo alleges the following statements:

104. On information and belief, Defendant Aborder goes to great

lengths to manipulate ratings and reviews and to remove any

negative reviews or poor ratings.

2 Cumbor is one of the companies collectively referred to as “Aborder.”

105. On information and belief, in addition to its placement of

false product reviews in connection with the sales of its infringing

safety gate products on Amazon, and on information and belief,

Defendant Aborder has engaged in the removal of legitimate ratings

and reviews. That is, Aborder has manipulated Amazon’s rating

systems to broaden the removal of ratings and reviews, and thus,

overstate positive customer experiences.

106. On further information and belief, Defendant Aborder has

wrongfully classified negative reviews as fault caused by

“fulfillment experience by Amazon” to remove their presence.

(ECF No. 1 at 29). Here, Regalo’s allegations regarding removal of negative reviews, similar to

its contentions regarding fake reviews, do not plausibly meet the required elements of a false

advertising claim. Schlotzsky’s Ltd., 520 F.3d at 400. Regalo’s allegations that the Amazon reviews

were manipulated “to remove any negative reviews or poor ratings[,]” are mere “’naked

assertion[s]’ devoid of ‘further factual enhancement,’” Iqbal, 555 U.S. at 678, and they do not

“raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, and therefore cannot

survive a motion to dismiss. Thus, the Court GRANTS Aborder’s Motion to Dismiss as to Count

Three—the False Advertising Claim. (ECF No. 1 at 27-31).

iii. Unfair Competition

Count Four of Regalo’s Petition claims Unfair Competition under common law. (ECF No.

1 at 31). The Fifth Circuit has held that “we generally analyze Lanham Act false advertising claims

and common law unfair competition claims together.” Boltex Mfg. Co., L.P. v. Galperti, Inc., 827

F.App’x 401, 409 (5th Cir. 2020) (citing King v. Ames, 179 F.3d 370, 374-75 (5th Cir. 1999)).

Regalo alleges the following regarding their unfair competition claim:

117. These acts of unfair competition include, but are not limited

to, misuse of Plaintiffs’ trademarks, false and confusingly similar

product photographs, misappropriation of Regalo’s trade dress,

purchase of non-authentic and misleading product reviews, and the

removal of negative reviews and low customer ratings from the

product pages of Defendant Aborder’s infringing safety gates.

(ECF No. 1 at 31). Aborder moved to dismiss Regalo’s unfair competition claim, arguing

that “because [Regalo’s] copyright and trade dress claims cannot support their unfair competition

claim, and because they have also failed to sufficiently plead their remaining Lanham Act claims,

there are no other factual allegations in the pleadings on which to adequately base the unfair

competition claim.” (ECF No. 19 at 18). Regalo, in response, contends that because they “have

stated independent claims for trademark infringement and false advertising … they have also stated

a common law unfair competition claim.” (ECF No. 25 at 21). The Court having dismissed

Regalo’s Lanham Act claims, see supra Sections III(a)(ii)(1)-(2), now dismisses Regalo’s common

law unfair competition claim. Boltex Mtf. Co., 827 F.App’x at 409. Thus, the Court GRANTS

Aborder’s Motion to Dismiss as to Count Four—the Unfair Competition Claim. (ECF No. 1 at 31-

32).

iv. Patent Claims

Counts Five through Seven of Regalo’s Petition claims Patent Infringement pursuant to 35

U.S.C. § 271(a). Dismissal of a patent-infringement claim is appropriate when “the plaintiff merely

recites that the defendant infringes a claim limitation but fails to identify the parts of the allegedly

infringing instrumentality that perform the limitation or allege how the identified parts meet the

text of the limitation.” Soar Tools, LLC v. Mesquite Oil Tools, Inc., 2021 WL 3030066, at *4 (N.D.

Tex. July 2, 2021). Further, “[i]n ruling on a 12(b)(6) motion, a court need not ‘accept as true

allegations that contradict matters properly subject to judicial notice or by exhibit,’ such as the

claims and the patent specification.” Aatrix Software, Inc. v. Green Shades Software, Inc., 890

F.3d 1354, 1358 (Fed. Cir. 2018) (quoting Secured Mail Sols., LLC v. Universal Wilde, Inc., 873

F.3d 905, 913 (Fed. Cir. 2017)). A party directly infringes a patent if, without authority, it “makes,

uses, offers to sell, or sells [the] patented invention, within the United States or imports into the

United States [the] patented invention during the term of the patent.” 35 U.S.C. § 271(a). A product

qualifies as the “patented invention” under this standard only if it contains each element, or a

substantial equivalent of each element, of a claim of the patent. See Arigna Tech. Ltd. v. Bayerische

Motoren Werke AG, 2022 WL 610796, at *2 (E.D. Tex. Jan. 24, 2022).

Upon review of the complaint and the motion to dismiss briefing, the Court concludes

Regalo has pleaded specific facts which establish a plausibility of entitlement to relief on its Patent

Claims. Accordingly, Aborder’s Motion to Dismiss is DENIED only as to Counts Five through

Seven—the Patent Infringement Claims. (ECF No. 1 at 32-37).

v. Leave to Amend Complaint

Regalo requests, in the alternative, that the “Court grant it leave to amend to cure any

deficiencies.” (ECF No. 25 at 34). The Fifth Circuit has addressed leave to amend pleadings:

Under Rule 15(a), “leave to amend shall be freely given when justice

so requires,” and should be granted absent some justification for

refusal. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 230, 9 L.Ed.2d

222 (1962).The liberal amendment policy underlying Rule 15(a)

affords the court broad discretion in granting leave to amend and,

consequently, a motion for leave to amend should not be denied

unless there is “undue delay, bad faith or dilatory motive on the part

of the movant, repeated failure to cure deficiencies by amendments

previously allowed [or] undue prejudice to the opposing party by

virtue of allowance of the amendment[.]” Foman, 83 S.Ct. at 230.

U.S. ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 386 (5th Cir. 2003). “[A]

bare request in an opposition to a motion to dismiss—without any indication of the particular

grounds on which the amendment is sought, cf. Fed. R. Civ. P. 7(b)—does not constitute a motion

within the contemplation of Rule 15(a).” Confederate Mem'l Ass'n, Inc. v. Hines, 995 F.2d 295,

299 (D.C. Cir. 1993). “Granting leave to amend ... is not required if the plaintiff has already

pleaded [his] ‘best case.’” Wiggins v. Louisiana State Univ.-Health Care Servs. Div., 710 F. App'x

625, 627 (5th Cir. 2017) (citing Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (citing

Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam))). “A plaintiff has pleaded

[his] best case after [he] is apprised of the insufficiency of [his] complaint.” Wiggins, 710 F. App'x

at 627 (internal quotation and citation omitted). The Fifth Circuit further explained:

A plaintiff may indicate she has not pleaded her best case by

stating material facts that she would include in an amended

complaint to overcome the deficiencies identified by the court.

See Brewster, 587 F.3d at 767–68. Similarly, a district court need

not grant a futile motion to amend. Legate, 822 F.3d at 211 (citing

Stripling v. Jordan Prod. Co., 234 F.3d 863, 872–73 (5th Cir.

2000)). “Futility is determined under Rule 12(b)(6) standards,

meaning an amendment is considered futile if it would fail to state a

claim upon which relief could be granted.” Id.

Wiggins, 710 F. App'x at 627 (emphasis added in bold). The Fifth Circuit has affirmed denials of

leave to amend where it determined that the proposed amendment would be futile after analyzing

the claims. See Edoinwe v. Bailey, 860 F.3d 287, 295 (5th Cir. 2017) (where the proposed amended

complaint failed to state a claim under 42 U.S.C. § 1983).

Here, Regalo did not expressly request with particularity the opportunity to amend its

complaint. Willard, 363 F.3d at 387. Regalo’s request for leave to amend its complaint states:

The Fifth Circuit has held that “[e]ven if a plaintiff’s pleadings are

deficient under Rule 12(b)(6), a distrit court should freely give leave

to amend when justice so requires.” Matter of Life Partners

Holdings, Inc., 929 F.3d 103, 125 (5th Cir. 2019); see also United

Healthcare Servs. v. Next Health, LLC, No. 3:17-CV-00243-E-BT,

2021 U.S. Dist. LEXIS 36084, at *55 (N.D. Tex. Feb. 26, 2021)

(Brown, J.) (“the Court ordinarily permits a plaintiff one opportunity

to replead following a first motion to dismiss”). This case is still in

its early stages, and issue has yet to be joined. Plaintiffs have had no

prior amendment, and there has been no ruling issued by the Court

assessing the sufficiency of Plaintiffs’ claims.

Moreover, leave to amend would be especially appropriate in this

case. As noted, Plaintiffs have not had a fulsome opportunity to

amend due to Aborder’s failure to comply with the Standing Order

and completely apprise Plaintiffs of all alleged insufficiencies of

their Complaint.

(ECF No. 25 at 34). This “does not provide any indication of the grounds on which such an

amendment should be permitted.” Willard, 336 F.3d at 387. Northern District of Texas Local Civil

Rule 15.1 requires a party seeking leave to file an amended pleading to “attach a copy of the

proposed amended pleading as an exhibit to the motion[.]” N. D. Tex. Loc. Civ. R. 15.1(a). Regalo

attached no amended pleading to its request for leave. (See ECF No. 20). Regalo further offers no

discussion of factual allegation(s) that it intends to add or revise in any further amended pleading.

(ECF No. 25 at 34). Notwithstanding, the Court's policies and procedures require defendants to

apprise plaintiffs of insufficiencies in the complaint. See Wiggins 710 F. App'x at 627. Aborder

avers it complied in apprising Regalo, and the record reflects the same—to wit, Regalo never filed

an Advisory of intent to amend, nor did it amend the Original Complaint. (ECF Nos. 1; 25 at 38-

49).

The Court determines Regalo has pleaded its best case. The Court concludes permitting

Regalo “any [further] attempts at amendment would be futile.” See generally Wiggins, 710 F.

App'x at 627 (discussing the same). The Court thus DENIES Regalo’s embedded motion for leave

to amend.

b. Motion for Preliminary Injunction

Pending with the Court are the following additional motions: (i) Regalo’s Motion for

Preliminary Injunction, (ECF No. 13); (ii) Aborder’s Motion for Leave to File Sur-Reply (ECF

No. 24); and (iii) Regalo’s Varius Motions for Hearing, (ECF Nos. 27; 40; 42). The Northern

District of Texas Second Amended Miscellaneous Order Number 62, Section 1 provides that, “[i]f

any motion filed prior to the claim construction hearing provided for in paragraph 4-6 raises claim

construction issues, the presiding judge may, for good cause shown, defer the motion until after

completion of the disclosures, filing, or ruling following the claim construction hearing.” Northern

District of Texas Second Amended Miscellaneous Order Number 62, Section 1-2.

Because the parties’ arguments in their briefing of Regalo’s Motion for Preliminary

Injunction implicates claims construction of the remaining causes of actions, the Court finds good

cause to defer the adjudication of the Motion until after the parties’ claims construction briefing is

completed. The Court shall enter, by separate order, deadlines regarding the same. Accordingly,

the Court DEFERS ruling on the Motion for Preliminary Injunction, (ECF No. 13), and DENIES

WITHOUT PREJUDICE Aborder’s Motion for Leave to File Sur-Reply, (ECF No. 24), and

Regalo’s Motions for Hearing, (ECF No. 27; 40; 42).

IV. CONCLUSION

For the reasons enumerated above, the Court GRANTS in part and DENIES in part

Aborder’s Motion to Dismiss, (ECF No. 19), and dismisses, with prejudice, the following claims:

(i) trademark infringement, (11) false advertising, and (111) unfair competition. The only claims still

pending are (1) copyright infringement, and (11) the patent infringement claims against the ‘431

patent, the ‘233 patent, and the ‘589 patent. The Court DENIES Regalo’s embedded motions to

strike and leave to amend. Further, the Court DEFERS Regalo’s Motion for Preliminary

Injunction, (ECF No. 13); DENIES Aborder’s Motion for Leave to File Sur-Reply, (ECF No. 24);

DENIES Regalo’s Motions for Hearing, (ECF No. 27; 40; 42); and GRANTS Regalo’s Motion

to Withdraw ECF No. 40, (ECF No. 41).

SO ORDERED: this 28th day of August, 2025.

ADA BROWN

UNITED STATES DISTRICT JUDGE

(MEMORANDUM OPINION& ORDER. □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ S&B OF IS