Vicious Brands v. Face Co. — Antioxidant Product Allegations Keep One Lanham Act Claim Alive

Background

Vicious Brands, which does business as Saints & Sinners, sued Face Co., Holly Cutler, and Skin Saint over trademark infringement and false advertising. The defendants sell skincare products and services. Vicious Brands has traditionally sold haircare products but recently launched Velvet Divine Hair & Body Oil and alleged plans to expand further into skincare.

The operative complaint challenged benefit claims for three Face Co. products: The Power Couple Antioxidant, Re-Defyne Eye Cream, and Needle-Free Filler Serum. Earlier versions of the false-advertising claims had been dismissed because Vicious Brands had not yet placed a competing skincare product on the market or plausibly alleged imminent competition. After the hair and body oil launched, the company amended again. The defendants moved to dismiss, arguing that the products did not compete closely enough for Vicious Brands to have suffered commercial injury under the Lanham Act.

The Court’s Holding

Magistrate Judge Lisa J. Cisneros, acting with the parties’ consent, split the result by product. The court held that Vicious Brands plausibly alleged direct competition between its Velvet Divine oil and Face Co.’s Power Couple Antioxidant product. Both were allegedly sold online to the same luxury and performance skincare customers, promoted skin protection, and relied on antioxidants as part of their marketing. At the pleading stage, those overlaps supported a reasonable inference that consumers could treat the products as substitutes.

Direct competition matters because Ninth Circuit law generally permits a presumption of commercial injury when a competitor’s misleading statement is likely to divert customers. The court distinguished an unpublished Ninth Circuit decision that demanded more concrete evidence of substitution, such as side-by-side listings or customer reviews. That case did not clearly involve the same allegations about shared customers and sales channels, and its evidence-focused approach was difficult to reconcile with the ordinary Rule 12(b)(6) standard. Whether Vicious Brands can ultimately prove lost sales or reputational harm remains open, but it alleged enough to proceed as to the Power Couple product.

The theories involving Re-Defyne Eye Cream and Needle-Free Filler Serum did not survive. Those products were marketed for wrinkles around the eyes, firmness, and effects resembling collagen filler. The complaint did not explain why customers would view a hair and body oil as a substitute for those products. Nor did unspecified claims about other products satisfy federal pleading standards. Because Vicious Brands had already amended multiple times, the court denied further leave to amend those dismissed theories.

The same ruling applied to the parallel California unfair-competition claim insofar as it relied on false advertising. The court also denied the defendants’ request for Lanham Act attorneys’ fees without prejudice. With part of the federal claim still pending, no party had yet prevailed, so an exceptional-case fee award was premature. The separate trademark claims, which had already survived summary judgment, were not at issue and remain active.

Key Takeaways

• A Lanham Act false-advertising plaintiff can plausibly allege commercial injury by identifying overlapping customers, sales channels, product functions, and marketing themes.
• Being in the same broad industry is not enough; the complaint must connect each challenged product to something consumers may actually choose instead.
• Different challenged products can produce different pleading outcomes even when they appear in the same advertising campaign or complaint.
• Lanham Act fee requests are premature when material false-advertising and trademark claims remain unresolved.

Why It Matters

The ruling provides a practical roadmap for brands challenging competitors’ product-performance claims. Plaintiffs should plead competition at the product level, explaining who buys each item, where it is sold, what problem it addresses, and why a purchase of one could displace the other. General assertions that two companies sell beauty products will not carry every theory.

For defendants, the decision shows that a motion to dismiss can still narrow a case substantially even when one product-specific theory survives. Companies facing false-advertising claims should test the alleged substitution chain separately for every product and every statement rather than treating the complaint as a single all-or-nothing claim.