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Belmora LLC v. Bayer Consumer Care AG

United States District Court, E.D. Virginia, Alexandria Division

February 6, 2015

BELMORA LLC, Plaintiff,
v.
BAYER CONSUMER CARE AG & BAYER HEALTHCARE LLC, Defendants-Consolidated Plaintiffs,
v.
BELMORA, LLC, JAMIE BELCASTRO, & DOES 1-10, INCLUSIVE, Consolidated Defendants

For Belmora LLC, Plaintiff, Counter Defendant: Craig Crandall Reilly, LEAD ATTORNEY, Law Office of Craig C. Reilly, Alexandria, VA; John Nolan Jennison, LEAD ATTORNEY, Law Offices Jennison & Shultz, P.C., Arlington, VA.

For Bayer Consumer Care AG, Bayer Healthcare LLC, Defendants: Robert J. Shaughnessy, LEAD ATTORNEY, Williams & Connolly LLP, Washington, DC; Eric Christopher Wiener, James Norman Bierman, Jr., Williams & Connolly LLP (DC), Washington, DC.

For Belmora LLC, a Virginia Limited Liability Company, Jamie Belcastro, an individual, Consolidated Defendants: Craig Crandall Reilly, LEAD ATTORNEY, Law Office of Craig C. Reilly, Alexandria, VA; Raffi Vaheh Zerounian, LEAD ATTORNEY, The Taillieu Law Firm, Beverly Hills, CA.

For Bayer Consumer Care AG, a Delaware Limited Liability Company, Bayer Healthcare LLC, Consolidated Plaintiffs: Brent H Blakely, Cindy W Chan, Courtney L Stuart-Alban, LEAD ATTORNEYS, Blakely Law Group, Manhattan Beach, CA; Robert J. Shaughnessy, LEAD ATTORNEY, Williams & Connolly LLP, Washington, DC; Eric Christopher Wiener, James Norman Bierman, Jr., Williams & Connolly LLP (DC), Washington, DC.

For Bayer Consumer Care AG, a Delaware Limited Liability Company, Counter Claimant: Robert J. Shaughnessy, LEAD ATTORNEY, Williams & Connolly LLP, Washington, DC; Eric Christopher Wiener, James Norman Bierman, Jr., Williams & Connolly LLP (DC), Washington, DC.

For Bayer Healthcare LLC, Counter Claimant: Brent H Blakely, Cindy W Chan, Courtney L Stuart-Alban, LEAD ATTORNEYS, Blakely Law Group, Manhattan Beach, CA; Robert J. Shaughnessy, LEAD ATTORNEY, Williams & Connolly LLP, Washington, DC; Eric Christopher Wiener, James Norman Bierman, Jr., Williams & Connolly LLP (DC), Washington, DC.

For Belmora LLC, a Virginia Limited Liability Company, Counter Defendant: Craig Crandall Reilly, LEAD ATTORNEY, Law Office of Craig C. Reilly, Alexandria, VA; John Nolan Jennison, LEAD ATTORNEY, Law Offices Jennison & Shultz, P.C., Arlington, VA.

MEMORANDUM OPINION AND ORDER

Gerald Bruce Lee, United States District Judge.

THIS MATTER is before the Court on Belmora LLC's (" Belmora" ) Motion to Dismiss Bayer Consumer Care AG and Bayer Healthcare's Complaint (" Motion to Dismiss Complaint" ) (Doc. 36), Belmora's Motion to Dismiss Bayer CC AG's Counterclaim (" Motion to Dismiss Counterclaim" ) (Doc. 45), and Belmora's Motion for Judgment on the Pleadings (Doc. 55). This case arises from Bayer Consumer Care AG and Bayer Healthcare's (collectively " Bayer" ) claims that Belmora's FLANAX trademark should be cancelled because Belmora deceives consumers into thinking that its FLANAX brand of pain relief medicine is the same FLANAX brand under which Bayer has sold pain relief medicine in Mexico for decades. The Trademark Trial and Appeal Board (" TTAB" ) cancelled Belmora's trademark. The parties seek review of that decision and bring additional causes of action.

There are six issues before the Court. The first issue is whether the Court should dismiss Count I of Bayer's Complaint, alleging that Belmora violated Section 43(a)(1)(A) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), which prohibits the false designation of origin, because Bayer lacks standing to bring the statutory cause of action. The second issue is whether the Court should dismiss Count II of Bayer's Complaint, alleging that Belmora violated Section 43(a)(1)(B) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), which prohibits false advertising, because Bayer lacks standing to bring the statutory cause of action. The third issue is whether the Court should dismiss Bayer's California state law claims. The fourth issue is whether the Court should dismiss Bayer's Article 6 bis counterclaim and affirm the TTAB's dismissal of Bayer's Article 6 bis claim because Section 44(b) of the Lanham Act, 15 U.S.C. § 1126(b), which implements the Paris Convention, does not protect foreign mark owners beyond the protections already afforded by the Lanham Act. The fifth issue is whether the Court should grant Belmora's Motion for Judgment on the Pleadings and affirm the TTAB's holding that Bayer had standing to bring a misrepresentation of source action under Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3), because Bayer is not within the class of plaintiffs Congress sought to protect under Section 14(3). The sixth issue is whether the Court should grant Belmora's Motion for Judgment on the Pleadings and affirm the TTAB's holding that Belmora misrepresented the source of FLANAX under Section 14(3) because there is a use requirement in a misrepresentation of source action.

This may be a case of first impression which presents novel questions about the reach of the Lanham Act. Belmora's FLANAX, trademarked and sold in the United States, has a similar trade dress to Bayer's FLANAX and is marketed in a way that capitalizes on the the goodwill of Bayer's FLANAX, which is trademarked and sold in Mexico. The Court has grappled with whether Belmora's FLANAX mark deceives the public in a manner prohibited by the Lanham Act. The issues in this case can be distilled into one single question: Does the Lanham Act allow the owner of a foreign mark that is not registered in the United States and further has never used the mark in United States commerce to assert priority rights over a mark that is registered in the United States by another party and used in United States commerce? The answer is no. Accordingly, the TTAB's decision cancelling the registration of Belmora's FLANAX mark is REVERSED and Belmora's Motion to Dismiss Complaint, Motion to Dismiss Bayer's Counterclaim, and Motion for Judgment on the Pleadings are GRANTED.

The Court GRANTS Belmora's Motion to Dismiss Complaint for two reasons. First, the Court GRANTS Belmora's Motion to Dismiss the false designation of origin claim because Bayer lacks standing to sue under Section 43(a)(1)(A) of the Lanham Act pursuant to Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014), as Bayer's interests do not fall within the zone of interests Congress intended to protect under Section 43(a)(1)(A) and Bayer did not sufficiently plead economic injury or an injury to business reputation proximately caused by Belmora's use of the FLANAX mark. Second, the Court GRANTS Belmora's Motion to Dismiss the false advertising claim because Bayer lacks standing to sue under Section 43(a)(1)(B) of the Lanham Act as Bayer did not sufficiently plead an injury to commercial interest in sales or business reputation proximately caused by Belmora's alleged misrepresentations as required by Lexmark. Furthermore, the Court DISMISSES Bayer's state law claims because they have no federal claim to attach to as both of the federal claims are dismissed.

The Court GRANTS Belmora's Motion to Dismiss Bayer's Counterclaim and AFFIRMS the TTAB's dismissal of Bayer's Article 6 bis claim because Bayer's claim that it can bring an action under Article 6 bis against Belmora is implausible as the Paris Convention is not self-executing and Sections 44(b) and (h) of the Lanham Act, 15 U.S.C. § 1126(b) and (h), do not make Article 6 bis of the Paris Convention a ground for contesting trademark registration.

The Court GRANTS Belmora's Motion for Judgment on the Pleadings for two reasons. First, the Court GRANTS Belmora's Motion for Judgment on the Pleadings and REVERSES the TTAB's holding that Bayer had standing to seek cancellation of the registration of Belmora's FLANAX mark under Section 14(3) because Bayer lacks standing to sue pursuant to Lexmark as Bayer's interests do not fall within the zone of interests Congress intended to protect under Section 14(3) and Bayer did not sufficiently plead economic injury or an injury to business reputation proximately caused by Belmora's use of the FLANAX mark. Second, the Court GRANTS Belmora's Motion for Judgment on the Pleadings and REVERSES the TTAB's holding that Belmora was using the FLANAX mark to misrepresent source because Section 14(3) requires use of the mark in United States commerce and Bayer did not use the FLANAX mark in the United States.

I. BACKGROUND

Belmora is a Virginia limited liability company formed in 2002. It is owned and operated by Jamie Belcastro. (Doc. 1 ¶ ¶ 9-10.) Belmora operates in the United States and sells over-the-counter pain relief products under the FLANAX brand name. ( Id. ¶ 10.) FLANAX was originally an " analgesic tablet that contained naproxen sodium as its active ingredient," but the brand has since grown to encompass liniment and lozenges. ( Id. ¶ ¶ 11-12.) On October 6, 2003, Belmora filed an application with the United States Patent and Trademark Office (" PTO" ) to register the FLANAX mark for the analgesic tablets. ( Id. ¶ 13.) This application was published for opposition on August 3, 2004, and the PTO issued the registration for the FLANAX mark on February 1, 2005. ( Id. ¶ ¶ 14-15.) Belmora has used the FLANAX mark in interstate commerce in the United States since March 1, In addition to the2004. ( Id. ¶ 17.)

Bayer Consumer Care AG, a Swiss corporation, Bayer Healthcare LLC, a Delaware limited liability company, and predecessors have sold analgesics in Mexico under the Mexican-registered trademark FLANAX since the 1970s. Bayer Compl. ¶ ¶ 1-2, 9, 14. Bayer does not possess a trademark for FLANAX in the United States. ( Id. ¶ ¶ 26-31.) Bayer attempted to register FLANAX in the United States in 2004 but the PTO rejected the application based on Belmora's preexisting efforts to register the mark. (Doc. 35 ¶ ¶ 32-36.) Bayer has sold hundreds of millions of dollars of FLANAX products in Mexico. Bayer Compl. ¶ 11. Bayer promotes FLANAX in Mexico, including in major cities near the United States-Mexico border, but has never marketed or sold FLANAX in the United States. ( Id. ¶ 12; Doc. ¶ ¶ 56-57.) Bayer has never received approval from the FDA through a New Drug Application to market or sell FLANAX in the United States. (Doc. 35 ¶ ¶ 53-61.)

Belmora's early packaging of FLANAX was " virtually identical" to that of Bayer's FLANAX, including a similar color scheme, font size, and typeface. [1] Bayer Compl. ¶ ¶ 21-25. Belmora has since changed its packaging, but this modified scheme remains similar to that of Bayer's FLANAX. ( Id. ¶ 26.) Belmora's marketing messages often suggested a historical connection between its FLANAX and Latino customers. ( Id. ¶ ¶ 30-35.)

On June 29, 2007, Bayer petitioned the TTAB to cancel the registration of Belmora's FLANAX mark. (Doc. 37 at 2.) After several years of litigation, on April 14, 2014, the TTAB issued a ruling canceling Belmora's FLANAX registration pursuant to Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3). Bayer Consumer Care AG v. Belmora LLC, 110 U.S.P.Q.2d 1623, 2014 WL 1679146 (T.T.A.B. 2014). On June 3, 2014, Belmora filed a Notice of Appeal to the Federal Circuit with the TTAB; however, on June 13, 2014, Bayer filed its Notice of Election to Have Review by Civil Action with the TTAB. (Doc. 37 at 3-4.)

On June 6, 2014, Bayer sued Belmora in the United States District Court for the Southern District of California. See Bayer Consumer Care AG v. Belmora, LLC, No. 3:14-cv-01395 (S.D. Cal.). Shortly thereafter, Bayer filed a notice of voluntary dismissal because " the case was filed in the wrong district." (Doc. 37 at 3 n.2.) On June 9, 2014, Bayer refilled its complaint in the Central District of California. See Bayer Consumer Care AG v. Belmora, LLC, No. 2:14-cv-04433 (C.D. Cal.). On June 12, 2014, the United States District Court for the Central District of California issued an order to show cause as to why the case should not be transferred either to the District of New Jersey or the Eastern District of Virginia. (Doc. 37 at 3-4.) The Central District of California case was eventually transferred and consolidated with the present action. ( Id. at 4.)

II. DISCUSSION

A. Standards of Review

1. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) enables a defendant to move for dismissal by challenging the sufficiency of the plaintiff's complaint. Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion should be granted where the plaintiff has failed to " state a plausible claim for relief' under Rule 8(a). Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). To be facially plausible, a claim must contain " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Clatterbuck v. City of Charlottesville, 708 F.3d 549, 554 (4th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations, which if taken as true, " raise a right to relief above the speculative level" and " nudg[e] [the] claims across the line from conceivable to plausible." Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

The requirement for plausibility does not mandate a showing of probability but merely that there is more than a possibility of the defendant's unlawful acts. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). As a result, a complaint must contain more than " naked assertions" and " unadorned conclusory allegations" and requires some " factual enhancement" in order to be sufficient. Id. (citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557). In addition to the complaint, the court will also examine " documents incorporated into the complaint by reference," as well as those matters properly subject to judicial notice. Clatterbuck, 708 F.3d at 557 (citations omitted); Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 176 (4th Cir. 2009) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)).

A court's Rule 12(b)(6) review involves separating factual allegations from legal conclusions. Burnette v. Fahey, 687 F.3d 171, 180 (4th Cir. 2012). In considering a Rule 12(b)(6) motion, a court must give all reasonable inferences to the plaintiff and accept all factual allegations as true. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted). Though a court must accept the truthfulness of all factual allegations, it does not have to accept the veracity of bare legal conclusions. Burnette, 687 F.3d at 180 (citing Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011)).

A court must grant a Rule 12(b)(6) motion where a complaint fails to provide sufficient nonconclusory factual allegations to allow the court to draw the reasonable inference of the defendant's liability. Giacomelli, 588 F.3d at 196-97 (citing Iqbal, 556 U.S. at 678-79; Gooden v. Howard County, 954 F.2d 960,969-70 (4th Cir. 1992) (en banc)).

2. Motion for Judgment on the Pleadings

Rule 12(c) provides that, " After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). " A Rule 12(c) motion tests only the sufficiency of the complaint and does not resolve the merits of the plaintiff's claims or any disputes of fact." Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014) (citing Butler v. United States, 702 F.3d 749, 752 (4th Cir. 2012)). " A motion for judgment on the pleadings under Rule 12(c) is assessed under the same standards as a motion to dismiss under Rule 12(b)(6)." Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A court must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (citations omitted). However, a court is not required to " accept allegations that represent unwarranted inferences, unreasonable conclusions or arguments, or that contradict matters properly subject to judicial notice or by exhibit." Id. (internal quotation marks omitted) (citing Blankenship v. Manchin, 471 F.3d 523, 529 (4th Cir. 2006)).

3. De Novo Review of TTAB Decision

15 U.S.C. § 1071(b)(1) " permits a party in a trademark suit to initiate a civil action in the place of an appeal of the TTAB's determination to the Federal Circuit." Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 155 (4th Cir. 2014). " In a § 1071(b) action, the district court reviews the record de novo and acts as the finder of fact. The district court has authority independent of the PTO to grant or cancel registrations and to decide any related matters such as infringement and unfair competition claims." Id. (citing 15 U.S.C. § 1071(b)(1); Durox Co. v. Duron Paint Mfg. Co., 320 F.2d 882, 883-84 (4th Cir. 1963)).

B. Analysis

The Court GRANTS Belmora's Motion to Dismiss Complaint for two reasons. First, the Court GRANTS Belmora's Motion to Dismiss the false designation of origin claim because Bayer lacks standing to sue under Section 43(a)(1)(A) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), pursuant to Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014), as Bayer's interests do not fall within the zone of interests Congress intended to protect under Section 43(a)(1)(A) and Bayer did not sufficiently plead economic injury or an injury to business reputation proximately caused by Belmora's use of the FLANAX mark. Second, the Court GRANTS Belmora's Motion to Dismiss the false advertising claim because Bayer lacks standing to sue under Section 43(a)(1)(B) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), as Bayer did not sufficiently plead an injury to commercial interest in sales or business reputation proximately caused by Belmora's alleged misrepresentations as required by Lexmark. Furthermore, the Court DISMISSES Bayer's state law claims because they have no federal claim to attach to as both of the federal claims are dismissed.

The Court GRANTS Belmora's Motion to Dismiss Bayer's Counterclaim and AFFIRMS the TTAB's dismissal of Bayer's Article 6 bis claim because Bayer's claim that it can bring an action under Article 6 bis against Belmora is implausible as the Paris Convention is not self-executing and Sections 44(b) and (h) of the Lanham Act, 15 U.S.C. § 1126(b) and (h), do not make Article 6 bis of the Paris Convention a ground for contesting trademark registration.

The Court GRANTS Belmora's Motion for Judgment on the Pleadings for two reasons. First, the Court GRANTS Belmora's Motion for Judgment on the Pleadings and REVERSES the TTAB's holding that Bayer had standing to seek cancellation of the registration of Belmora's FLANAX mark under Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3), because Bayer lacks standing to sue pursuant to Lexmark as Bayer's interests do not fall within the zone of interests Congress intended to protect under Section 14(3) and Bayer did not sufficiently plead economic injury or an injury to business reputation proximately caused by Belmora's use of the FLANAX mark. Second, the Court GRANTS Belmora's Motion for Judgment on the Pleadings and REVERSES the TTAB's holding that Belmora was using the FLANAX mark to misrepresent source because Section 14(3) requires use of the mark in United States commerce and Bayer did not use the FLANAX mark in the United States.

A. False Designation of Origin

The Court GRANTS Belmora's Motion to Dismiss the false designation of origin claim because Bayer lacks standing to sue under Section 43 (a)(1)(A) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A). The Supreme Court's decision in Lexmark Int'l Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014), provides this Court with guidance in determining whether a plaintiff has standing to bring a claim under the Lanham Act. In Lexmark, supplier Static Control alleged that manufacturer Lexmark engaged in false advertising in violation of the Lanham Act. Static Control supplied remanufacturers with a microchip that allowed them to refurbish and resell Lexmark toner cartridges. Id. at 1383. Static Control claimed that Lexmark " disparaged its business and products by asserting that Static Control's business was illegal," and that it designed, manufactured, and sold microchips whose only use/purpose was to refurbish Lexmark toner cartridges. Id. at 1393-94. The Court held that Static Control had standing because it " alleged an adequate basis to proceed under § 1125(a)." Id. at 1395 (emphasis in original). In so doing, the Court created a two-pronged test to determine whether a plaintiff has standing to bring a statutory cause of action.

In Lexmark, the Supreme Court " establish[ed] the zone-of-interests test and proximate causality requirement as the proper analysis for analyzing standing to allege a claim under the Lanham Act." Syngenta Seeds, Inc. v. Bunge N. Am., Inc., 773 F.3d 58, 64 (8th Cir. 2014). First, the plaintiff's allegations must demonstrate that the plaintiff is in the statute's zone of interests. Second, the complaint must allege injuries tying the harm suffered to the defendant's conduct.

Under the zone-of-interests test, a statutory cause of action extends only to plaintiffs whose interests fall within the zone of interests protected by the law invoked. This test is not " especially demanding." Lexmark, 134 S.Ct. at 1389 (citations and internal quotation marks omitted). When applying the zone of interests test, the plaintiff receives the " benefit of any doubt." Id. (emphasis added). Furthermore, the zone-of-interests test " forecloses suit only when a plaintiffs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue." Id. (citations and internal quotation marks omitted). Lost sales and damage to business reputation are " injuries to precisely the sorts of commercial interests the [Lanham] Act protects." Id. at 1393; see also Tire Eng'g & Distrib., LLC v. Shandong Linglong Rubber Co., 682 F.3d 292, 310 (4th Cir. 2012) (quoting Nintendo of Am., Inc. v. Aeropower Co., 34 F.3d 246, 250 (4th Cir. 1994) (" [W]e have reasoned that the archetypal injury contemplated by the Act is harm to the plaintiff's 'trade reputation in United States markets.'" )).

The proximate cause requirement requires a plaintiff bringing a claim under Section 43(a) to show " economic or reputational injury flowing directly" from the defendant's alleged violation of the statute. Lexmark, 134 S.Ct. at 1391. The Supreme Court identified injuries flowing from an audience's belief in disparaging remarks and equating a product with an inferior product as examples of reputational harm. Id. at 1393 (citing McNeilab, Inc. v. Am. Home Prods. Corp., 848 F.2d 34, 38 (2d Cir. 1988) (disparaging statements); Camel Hair & Cashmere Inst, of Am., Inc. v. Associated Dry Goods Corp., 799 F.2d 6, 7-8, 11-12 (1st Cir. 1986) (equating with inferior product); PPX Enters., Inc. v. Audiofidelity, Inc., 746 F.2d 120, 122, 125 (2d Cir. 1984) (same)); see also PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 127 (4th Cir. 2011) (observing that a mailer deterring consumers from using a manufacturer's product damaged the manufacturer's reputation); Ga. P. Consumer Prods., LP v. Von Drehle Corp., 618 F.3d 441, 453 (4th Cir. 2010) (citing Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir. 1987)) (" [P]laintiff's reputation would suffer damage if the shirt appeared to be of poor quality." ).

1. Zone of Interests

The Court holds that Bayer's interests do not fall within the zone of interests Congress intended to protect under Section 43(a) of the Lanham Act because Bayer does not possess a protectable interest in the FLANAX mark in the United States. Whether a plaintiff comes within " the zone of interests" is an issue that requires the Court to interpret the statute to determine " whether a legislatively conferred cause of action encompasses a particular plaintiff's claim." Lexmark, 134 S.Ct. at 1387 (citations and internal quotation marks omitted). Section 43(a)(1)(A) imposes civil liability on:

[a]ny person who, on or in connection with any goods or services,. . . uses in commerce any word . . . [or] name . . ., or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the ...

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