Vicious Brands, Inc. v. Face Co., No. 24-cv-04996-LJC, 2026
WL 276178 (N.D. Cal. Feb. 3, 2026) (magistrate)

Plaintiff, aka Saints & Sinners, sued Face, aka Skin
Saint, alleging trademark infringement and false advertising. The court granted
the motion to dismiss the false advertising claims but denied summary judgment
on trademark infringement, except for reverse confusion, reflecting the higher
barriers to false advertising claims.

Plaintiff has sold Saints & Sinners haircare products
since 2016, using a mark that includes two horizontally conjoined instances of
the letter S:

Defendants sell beauty consultation services and skincare
products under the Skin Saint trade name, using a mark that consists of two
vertically conjoined instances of the letter S:

They began using it in 2021; Saints & Sinners first
learned of it in 2023. “Defendants sell their products through a physical
location in Michigan and, to a lesser extent, nationally through their website”
and through shop.app. They promote themselves on social media and some national
television appearances.

Saints & Sinners alleged that it has been planning to
expand into skincare.

False advertising: Saints & Sinners alleged that
“Defendants have engaged in false advertising by making misleading and
deceptive claims about their products in commercial advertisements and
promotions, including representations that their products are medical grade,
provide anti-aging results equivalent to that of medical cosmetic treatments
like injectable fillers and toxins, and reverse/prevent aging changes in the
skin.”

But Saints & Sinners didn’t have standing because there
was no imminent injury. (Why is there standing to claim trademark infringement,
then? Sigh.)

It alleged that it was “ready to launch its skincare line
upon finalization of product attributes and regulatory review,” and that its
products would “directly compete with the serums, creams, and other topical
formulations marketed and sold under Defendants’ brand … namely: cleanser;
moisturizer; creams; cleansers [sic]; toners; masks; skin treatments; and
serums, all in Class 3.” It also alleged that both parties sell through
e-commerce to the same general consumer demographics seeking moisturizing,
antioxidant, and anti-aging skincare products, targeting the same customer
demographics— “customers seeking luxury and performance skincare products”—and sold
through overlapping channels, including online retail/ecommerce platforms like
Amazon.

The Supreme Court has “repeatedly reiterated that threatened
injury must be certainly impending to constitute injury in fact, and that
allegations of possible future injury are not sufficient.” In Lanham Act cases,
the Ninth Circuit has “generally presumed commercial injury when defendant and
plaintiff are direct competitors and defendant’s misrepresentation has a
tendency to mislead consumers.” A plaintiff can meet that burden “using actual
market experience and probable market behavior,” which in the absence of “lost
sales data” might be done by “creating a chain of inferences showing how
defendant’s false advertising could harm plaintiff’s business.” At issue here
was “harm to reputation or sales, which generally arises from direct
competition.”

For Article III, the court pointed to the classic Lujan
case, where environmental plaintiffs’ “mere profession of an intent, some day,
to return” to sites allegedly harmed by the challenged projects was
insufficient to satisfy Article III’s injury requirement. As there, “the
plaintiff alleges only an injury at some indefinite future time, and the acts
necessary to make the injury happen are at least partly within the plaintiff’s
own control.”

In Tercica, Inc. v. Insmed Inc., No. C 05-5027 SBA, 2006 WL
1626930 (N.D. Cal. June 9, 2006), the court found false advertising standing against
an intended competitor in the pharmaceutical industry where the plaintiff had
obtained “FDA approval … and product distribution [was] likely imminent.” And
courts and commentators have stated that “actively preparing to produce the
article in question” is sufficient as “the last point before the point of no
return” in the context of declaratory judgments. But this wasn’t a declaratory
judgment case where the plaintiff would otherwise risk infringement liability. “So
long as there are necessary steps beyond Plaintiff’s control, or doubt as to if
or when a competing product will actually come to market, Plaintiff has alleged
only ‘possible future injury’ as a result of Defendants’ purportedly false
advertising, rather than the ‘certainly impending’ injury necessary ‘to
constitute injury in fact.’” The allegations here indicated that Saints &
Sinners’ products remain subject to “finalization of product attributes and
regulatory review” before they come to market, “raising questions of whether
their launch could still be derailed.”

This analysis also applied to statutory standing under Lexmark.
The court did, however, reject any suggestion that a competitor in a “market
[with] numerous participants” lacks a sufficient expectation of “
‘automatically’ displace[d]” sales to support standing under the Lanham Act— “a
premise that would seem to preclude most if not all Lanham Act false
advertising claims in typical markets with multiple competitors.” The
allegations of the complaint were sufficient to support a plausible inference
that, if or when Sinners & Saints products come to market, at least some of
them will compete directly with at least some of defendants’ products. Leave to
amend granted.

Trademark/summary judgment: I gotta admit, this one seems
extremely thin to me, but nonetheless the parties must proceed on the forward
confusion theory.

Plaintiff’s double-S mark appears on many (perhaps all) of its
products, typically with the double-S mark positioned above Saints &
Sinners, which is in turn positioned above a product title. The product
packaging tends to be a solid color or gradient, with the mark and text
generally displayed in monochrome white, silver, or black. Saints & Sinners
products are mostly sold at suggested retail prices ranging from $20 to $95, and
in third-party beauty subscription boxes. And, as discussed, Saints &
Sinners planned to expand.

Skin Saint’s founder testified at a deposition that she used
a “logo generator” to develop a new mark in 2020, and settled on the double-S
mark because it was visually appealing and resembled her logo for her related
FACE clinic, which “is a wave with an F.” She did not research whether the mark
was similar to other marks used by other companies. Skin Saint’s products often
display their double-S mark positioned vertically above the words “SKIN SAINT,”
in turn above a product name or description. The packaging is white and the
mark and text are black. Since they began using the accused mark in 2021, defendants
have sold significantly more Skin Saint products through their clinic than
through their website.

Saints & Sinners learned of Skin Saint’s mark from a
trademark watch report that characterized defendants’ mark as having a “Low
risk” of conflict with plaintiff’s mark. Plaintiff nonetheless opposed, which
is ongoing.

Plaintiff’s counsel offered “screenshots of searches [he]
personally conducted on the SHOP.app website” that show some of defendants’
products among search results for the search query “Saints and Sinners
skincare” and other similar queries. But defense counsel was unable to
replicate those results and did not find any of defendants’ products when
running the same searches on Shop.app. (Hmm… a personalized algorithm might be
doing this if, as is plausible, plaintiff’s counsel had sought out defendants’
products before.) Defendants’ sales through Shop.app were 28 orders for a total
of $2,468 in the first ten months of 2025 and less in 2024.

There was no evidence of actual confusion or other harm. “A
Google search for either party’s name does not return the other party’s website
or products in the first ten pages of results.” Several other skincare and
haircare brands use marks with a double S, but none use “saint” or “sinner” in
their trade names.

Saints & Sinners also submitted an expert declaration from
“a beauty industry consultan[t] specializing in market strategy and consumer
behavior across skincare, haircare, and adjacent personal care categories” who opined
that haircare and skincare markets were converging to focus on scalp care (the “skinnification”
of hair), that impulse buying of beauty products in the social media era was
common, and that consumer confusion was likely, although the court didn’t rely
on that last for its summary judgment ruling.  

As for those searches on shop.app: “Whether intentionally or
not, both parties’ attorneys have made themselves fact witnesses, and the Court
now orders that the parties may take their depositions regarding the limited
issue of their Shop.app searches within the time that the parties have reserved
for other specific depositions.” The court wouldn’t disregard either parties’ attorneys’
searches. [Not sure depositions would help if the issue is algorithms! Bringing
in the specific computers, or at least logging in as the specific attorneys, might
do more.]

Basically, the multifactor confusion inquiry means that it’s
hard to grant summary judgment for defendants. Unfortunately, along with deeming
the double-S logo arbitrary and possessed of some commercial strength, the
court also quoted out-of-circuit precedent that incontestable registrations “are presumed to be strong marks.” [I didn’t pull the registrations–but the description that the registrations “include” rather than consist of the double-S would also cut against this conclusion, since what is incontestable is the registration as a whole, not parts of it.]

For reverse confusion, though, “Defendants’ relatively
modest sales—at least on the scale of the national skincare or beauty market as
a whole—undermine any implication that Defendants pose a serious risk of
dominating the public’s perception of the market.”

And, though the parties’ “marks have meaningful differences,
such that someone comparing them side by side would never consider them to be
the same mark,” there was enough similarity to go to a jury, even though it was
perhaps “a close call,” given the parties’ monochromatic color palettes and
overlapping use of “saint.”

And, even if a lack of survey evidence should be presumed to
favor the defendant, “whether a presumption has been overcome is normally a
question for the jury.” [I think this presumption is best applied to large
companies with large litigation budgets: if P&G doesn’t submit a survey, we
can infer that it expected bad results. I don’t think it’s a good idea to
disregard the absence of a survey in all summary judgment contexts, but the
court here does because it focuses on the Ninth Circuit’s caution that summary
judgment is disfavored in trademark infringement cases.]

Likewise, the court discounted the absence of any actual
confusion evidence because the parties weren’t in “direct local competition
over a period of several years.” “It remains possible that consumers have
confused the two marks, and either purchased or declined to purchase products
based on that mistake, without alerting either party to their having done so.”
How is the jury to assess this possibility in assessing likelihood?

from Blogger http://tushnet.blogspot.com/2026/02/conducting-dueling-internet-searches.html