North American Olive Oil Association v. D'Avolio Inc. et al

Filing 70

MEMORANDUM & ORDER: For all the foregoing reasons, Defendants motions to dismiss 64 , 65 pursuant to Rule 12(b)(6) are granted, and the case is dismissed. The Clerk of the Court is directed to close the case. SEE ATTACHED ORDER. So Ordered by Judge Sandra J. Feuerstein on 4/30/2020. (Cubano, Jazmin)

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FILED 
CLERK 

4/30/2020 3:22 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NORTH AMERICAN OLIVE OIL ASSOCIATION,
Plaintiff,
v.

MEMORANDUM & ORDER
16-CV-6986 (SJF) (ARL)

D’AVOLIO INC., O LIVE BROOKLYN LLC, THE
CRUSHED OLIVE OF BABYLON, INC., THE
CRUSHED OLIVE OF HUNTINGTON, INC.,
THE CRUSHED OLIVE OF SAYVILLE, INC.,
THE CRUSHED OLIVE OF STONYBROOK, INC.,
THE CRUSHED OLIVE OF WADING RIVER, INC.,
and VERONICA FOODS COMPANY,
Defendants.
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FEUERSTEIN, District Judge:
Plaintiff North American Olive Oil Association (“Plaintiff” or “NAOOA”) commenced
this action against D’Avolio Inc. (“D’Avolio”), O Live Brooklyn LLC (“O Live Brooklyn”), the
Crushed Olive of Bablyon, Inc., the Crushed Olive of Huntington, Inc., the Crushed Olive of
Sayville, Inc., the Crushed Olive of Stonybrook, Inc., the Crushed Olive of Wading River, Inc.
(together, “Crushed Olive”), and Veronica Foods Company (“VFC”) (collectively,
“Defendants”), alleging inter alia violations of section 43 (a) of the Lanham Act, 15 U.S.C.
§§ 1051, et seq., and of state law. Currently before the Court are motions to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FED. R. CIV. P.” or “Rule”) filed by VFC
and O Live Brooklyn, and by Crushed Olive. See VFC and O Live Brooklyn’s Motion, Docket
Entry (“DE”) [64] ; Crushed Olive’s Motion, DE [65]. Plaintiff has opposed both motions. For
the reasons set forth below, Defendants’ motions are granted.

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I. BACKGROUND
A. Factual History1
NAOOA, a division of the non-profit Association of Food Industries, Inc., is a trade
association based in New Jersey comprising marketers, packagers, producers and importers of
olive oil. It was established in 1989 to “foster a better understanding of olive oil and its taste,
versatility, and health benefits, and to ensure that olive oil sold in North American adheres to
internationally recognized guidelines.” Compl. ¶2. Its members pledge to abide by olive oil
quality and purity standards established by the International Olive Council (“IOC”), and
NAOOA “offers a Certified Quality Seal Program to indicate compliance with global trade
standards.” Id. NAOOA members account for approximately 55-60% of total olive oil sales in
the United States. Id. ¶20.
VFC, which produces olive oil, is a foreign corporation with its principal place of
business in California. VFC promotes its olive oils using the “Ultra Premium” designation (“UP
mark”), a new category of olive oil created by VFC which purportedly represents the highest
quality olive oil in the world. Compl. ¶25. VFC’s website claims that the UP standard “is
reserved for the finest extra virgin olive oils in the world, and as such, the UP grade exceeds all
existing European, Italian, Spanish, Greek, North American, Californian, or any other standard
for the grade known as extra virgin olive oil.” Id. ¶30. VFC registered the UP mark and the word
mark “UP ULTRA PREMIUM EXTRA VIRGIN OLIVE OIL CERTIFIED LAB TESTED
SENSORY EVALUATED HIGHEST STANDARD” with the United States Patent and
Trademark Office (“USPTO”). The UP mark is registered for commercial use and not as a
certification mark. Id. ¶28. The UP standard and mark is used by VFC and its licensees. The
The facts are taken from the Complaint (“Compl.”), DE [1], and are assumed to be true for purposes of
this motion.
1

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Crushed Olive, D’Avolio, and O Live Brooklyn (the “Retail Defendants”) are specialty retail
stores that sell olive oil including items produced and distributed by VFC.
According to the complaint, Defendants are collectively “engaged in a targeted and
concerted effort to attach the NAOOA and its members’ olive oil products sold in supermarkets”
by using online statements, articles, and promotional pieces to focus on “an alleged lack of
health benefits associated with the consumption of olive oils sold in supermarkets including
NAOOA members’ olive oil products.” Compl. ¶23.

Defendants have also directly targeted

NAOOA by publishing disparaging statements that attack its “reputation as an industry leader in
providing quality and purity standards for olive oil in the United States.” Id. ¶22. In addition,
VFC has introduced a “new premium standard for olive oil” which Plaintiff claims is a
marketing effort to deceive olive oil purchasers. Id. ¶21.
1. Disparagement of Olive Oil Sold in Supermarkets
VFC’s website states, without support, that “[o]ver 50% of the oil produced in the
Mediterranean area is of such poor quality that it must be refined to produce an edible product.”
Compl. ¶34. The complaint further alleges, upon information and belief, that VFC provides
retailers with marketing materials containing false and disparaging information, which the
retailers use to “target imported olive oil products sold in supermarkets, and specifically the
brands sold by NAOOA members.” Id. ¶33.
The complaint also contains allegations regarding misstatements made by the Retail
Defendants, as follows:
•

D’Avolio “distorts findings of an alleged industry report to represent to
consumers that various brands sold in supermarkets hold no health benefits,”
Compl. ¶35, by on its website referencing a study undertaken by the University of
California at Davis in 2010 (the “UC Davis Report”), and stating that the study
examined “numerous supermarket brands” and found that 70% “failed to qualify
chemically as Extra Virgin Olive Oil and was so old . . . to hold no health
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benefit. This study not only demonstrated that extra virgin olive oil is a term that
is often misused, but also that the organic certification process does not take in to
account quality, authenticity, or health benefits.” Id. (“D’Avolio Stmt”)2;
•

O Live Brooklyn’s owner gave an interview in which he stated that “if you’re
buying olive oil from a supermarket, it might not be real olive oil, or it might be
old,” Compl. ¶38 (“O Live Brooklyn Stmt 1”), in which case it has “lost all of the
goodness and freshness in it.” Id.;

•

O Live Brooklyn’s owner gave another interview, advising readers to “avoid
major brands. Those bottles have been sitting around on shelves for God knows
how long,” Compl. ¶39 (“O Live Brooklyn Stmt 2”), which, according to
Plaintiff, suggests that this oil has lost its “quality and health benefits. “ Id.; and

•

The Crushed Olive’s website states that “[t]he market has become flooded with
these oils that are regulated by absurdly low standards and fostered by numerous
trade associations that sacrifice quality for price.” Compl. ¶40 (“Crushed Olive
Stmt”). Plaintiff asserts that “[t]he reference to trade associations can only be to
the NAOOA, which is widely recognized as the leading olive oil trade association
in North America.” Id.

The statements set forth above are the only statements or conduct attributed directly to the Retail
Defendants.3
The complaint alleges that the “Retail Defendants, in concert with Defendant VFC, have
engaged in a false and misleading advertising campaign and published false and misleading
statements.” Compl. ¶ 22. However, with the exception of the Crushed Olive Defendants who
are defined by the complaint as a single entity, there are no allegations regarding any joint action
taken by any two defendants.

2

The quotation in the complaint cites the D’Avolio website but fails to indicate whether the bold
emphasis actually appeared on the website or was added by Plaintiff.
A second statement attributed to D’Avolio was not considered by the Court for reasons that will be set
forth below. See infra, n.5.
3

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2. VFC’s Ultra Premium Standard
VFC and its licensees use the UP designation and mark to market VFC’s products.
Defendants market their olive oils to mislead consumers “into falsely believing that the
recognized benefits of olive oil can only be achieved by consuming olive oil” meeting the UP
standard and certification. Compl. ¶31. Defendants fail to advise the consumer that the UP
mark cannot be displayed on the product of other olive oil producers because the standard and
mark is the “intellectual property of Defendant VFC and its licensees.” Id. As such, another
producer cannot label its product with the UP mark even if its product meets or exceeds the UP
standards. Id. ¶30. Plaintiff alleges that the UP mark and designation is false and misleading in
that it leads the consumer to believe that the olive oil was certified, sponsored, or approved by a
third party where in reality, the UP mark “is a self-created designation used exclusively by
[VFC] and its retailers to sell [VFC] olive oil.” Id. ¶29.
B. Procedural History
Plaintiff filed its complaint on December 19, 2016 asserting six (6) claims for relief: (1)
false advertising pursuant to Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (2) unfair
competition under New York law; (3) deceptive acts and practices in violation of New York
General Business Law (“GBL”) §§ 349 and 350; (4) product disparagement/trade libel; (5)
defamation/slander; and (6) cancellation of VFC’s UP trademark pursuant to Section 37 of the
Lanham Act, 15 U.S.C. §§ 1119 et seq. NAOOA seeks damages, cancellation of VFC’s UP
mark, and injunctive and declaratory relief.
Defendants moved to dismiss the complaint on several grounds, including NAOOA’s
standing to bring suit. By Memorandum of Decision and Order dated November 2, 2017,
District Judge Arthur D. Spatt granted Defendants’ motions to dismiss the complaint pursuant

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only to Rule 12(b)(1), finding that NAOOA lacked standing to bring suit on behalf of its
members. See Memorandum & Order of 11/2/2017, DE [40]. Judge Spatt subsequently granted
Plaintiff’s motion for reconsideration in part, adhering to the earlier decision regarding
NAOOA’s lack of associational standing, but finding that it has standing to sue on its own
behalf. See Memorandum & Order of 8/20/2018, DE [48]. The prior order was vacated, the case
reopened, and Defendants were given leave to refile their motions to dismiss on the grounds
raised in the original motions, but not previously addressed. See id.; Vacateur of Judgment, DE
[52]. Upon Judge Spatt’s recusal in October 2018, the matter was reassigned to this Court and
Defendants’ refiled their motions seeking dismissal pursuant to Rule 12(b)(6) for failure to state
a claim.
Based on law of the case doctrine, the remaining claims are analyzed on the basis of
NAOOA’s individual plaintiff standing. The following allegations pertain to harm suffered by
NAOOA:
•

Defendants “targeted the NAOOA itself by publishing disparaging statements
attacking the NAOOA’s reputation as an industry leader in providing quality and
purity standards for olive oil in the United States,” Compl. ¶ 22;

•

Defendants’ use of the UP mark, advertisements, statements to the media,
published articles and “other referenced representations” are likely to cause
consumers to believe that “the NAOOA is not a reputable and reliable trade
association and fails to uphold quality and purity standards for olive oil,” Compl.
¶¶44, 49, 57, 65,

•

VFC’s marketing campaign directly targets the NAOOA, citing the Crushed
Olive’s website statement that “[t]he market has become flooded with these oils
that are regulated by absurdly low standards and fostered by numerous trade
associations that sacrifice quality for price” and concluding that the “reference to
trade associations can only be to the NAOOA, which is widely recognized as the
leading olive oil trade association in North America.” Compl. ¶40; and

•

In promoting the UP standard, “Defendants have attempted to discredit the
NAOOA as an industry leader in upholding quality and purity standards. Compl.
¶43.
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The complaint contains no factual allegations regarding any financial harm to NAOOA.
II. LEGAL STANDARDS
A. Motion to Dismiss Standards
The standards for analyzing a motion to dismiss pursuant to Rule 12(b)(6) are wellestablished. The court must accept the factual allegations in the complaints as true and draw all
reasonable inferences in favor of the plaintiff. Lundy v. Catholic Health Sys. of Long Island Inc.,
711 F.3d 106, 113 (2d Cir. 2013) (citations omitted). The court determines “whether the ‘wellpleaded factual allegations,' assumed to be true, ‘plausibly give rise to an entitlement to relief.'”
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007)).
The determination of “whether a complaint states a plausible claim for relief” is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S at 679. A pleading that does nothing more than recite bare legal
conclusions, however, is insufficient to “unlock the doors of discovery.” Iqbal, 556 U.S. at 678679; see also Twombly, 550 U.S. at 555 (holding that a “formulaic recitation of cause of action's
elements will not do. . . Factual allegations must be enough to raise a right to relief above the
speculative level” (citations omitted)). While Rule 8 does not require “detailed factual
allegations,” it does require more than an “unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
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B. Consideration of Materials Outside the Pleadings
“The purpose of Rule 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency
of the plaintiff’s statement of a claim for relief without resolving a contest regarding its
substantive merits. The Rule thus assesses the legal feasibility of the complaint, but does not
weigh the evidence that might be offered to support it.” Global Network Commc'ns, Inc. v. City
of New York, 458 F.3d 150, 155 (2d Cir. 2006). In considering a motion to dismiss for failure to
state a claim, the Court “may review only a narrow universe of materials,” generally not looking
beyond “‘facts stated on the face of the complaint, ... documents appended to the complaint or
incorporated in the complaint by reference, and ... matters of which judicial notice may be
taken.’” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (alteration in original) (internal
quotation marks and citation omitted). The Federal Rules of Evidence permit a court to “take
judicial notice of facts that are ‘capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.’” Island Software & Computer Serv. Inc. v.
Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005) (quoting FED. R. EVID. 201(b)). The Court
may also take judicial notice of trademark registrations issued by the USPTO. See, e.g., Ahmed
v. GEO USA LLC, No. 14-CV- 7486, 2015 WL 1408895, at *1 (S.D.N.Y. Mar. 27, 2015); see
also Duckett v. Ramela Distrib. Inc., No. 11 Civ. 9532, 2012 WL 4336165, at * (S.D.N.Y. Sept.
18, 2012) (taking judicial notice of registration information contained in the USPTO trademark
database).
An exception to the general rule allows a court to also consider documents “integral” to
the complaint. The Second Circuit instructs that a document is “integral to the complaint where
the complaint relies heavily upon its terms and effect.” Goel, 820 F.3d at 558-59 (internal
quotation marks and citation omitted). “Merely mentioning a document in the complaint will not

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satisfy this standard; indeed, even offering limited quotations from the document is not enough.”
Id.; see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“a plaintiff's
reliance on the terms and effect of a document in drafting the complaint is a necessary
prerequisite to the court's consideration of the document on a dismissal motion; mere notice or
possession is not enough” (emphasis in original)). “In most instances where this exception is
recognized, the incorporated material is a contract or other legal document containing obligations
upon which the plaintiff's complaint stands or falls, but which for some reason—usually because
the document, read in its entirety, would undermine the legitimacy of the plaintiff's claim—was
not attached to the complaint.” Global Network Commc'ns, 458 F.3d at 157. A court may
consider the full text of documents partially quoted in the complaint so long as there is no
dispute regarding the accuracy or authenticity of the document. See Faulkner v. Beer, 463 F.3d
130, 134 (2d Cir. 2006); see also Diaz v. NBC Universal, Inc., 536 F. Supp. 2d 337, 342
(S.D.N.Y. 2008) (on motion to dismiss, the court “may consider the full text of documents that
are quoted in the complaint...”), aff’d, 337 F. App’x 94 (2d Cir. 2009).
Defendants have provided various materials that they urge the Court to consider in
deciding this motion.4 Crushed Olive submitted a declaration from its Operations Manager
attaching a copy of the text from Crushed Olive’s website that includes the statement attributed
to the Crushed Olive defendants. See Declaration of Dana Laughlin, Ex. A (“Crushed Olive
website”), DE [27-2]. VFC and O Live Brooklyn contend that the Complaint incorporates by
reference both the UC Davis Report and VFC’s website, and states that this Court “must
consider” those materials on this motion. See O Live Brooklyn & VFC Memorandum of Law

The materials were submitted as part of Defendants’ original motions to dismiss. Although they have
not resubmitted these materials in their renewed motions, they continue to refer to them in their
memoranda of law.
4

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(“VFC Mem. of Law”) at 2, n.1 DE [64-1]. They cite an attorney’s declaration attaching, inter
alia, the UC Davis Report, copies of VFC’s UP website and NAOOA’s website, various articles
regarding olive oil and its properties, and Trademark Registrations for marks not at issue in this
case. See Patek Decl., DE [24].
The Court takes judicial notice of the trademark registrations provided by Defendants but
only for the fact that the USPTO has issued trademarks utilizing variations of the word
“certified.” Defendants have also submitted the full text of some of the allegedly false
statements as contained in screenshots of websites and a copy of an article. See Patek Decl.. Ex.
C (“UP website”); id., Ex. J (“WIAT Article”); Laughlin Decl., Ex. A (“Crushed Olive
website”). Plaintiff does not dispute the authenticity of these materials, arguing only that the UP
website is “not integral to the Complaint and should be disregarded.” Plaintiff’s Memorandum
of Law in Opposition to Renewed Motions to Dismiss (“Pl. Opp.”) at 4 DE [66]. The Court
disagrees; to the extent NAOOA has cited partial quotations of statements from these materials
as allegations in the complaint, the Court will review those statements in context.
Defendants also offer the UC Davis Report, which is referenced briefly in the complaint.
NAOOA does not reference the report for its own content, however, but rather alleges that
Defendants have purposely mischaracterized the report. Thus, Plaintiff did not rely on the actual
report itself in framing its complaint and the report is not integral to it. The remainder of the
material submitted by Defendants is either not referenced within, or is not integral to, the
complaint. As such, the Court must, in order to consider the material, treat the motion as one for
summary judgment. See FED. R. CIV. P. 12(d). The Court declines to do so, and therefore will
exclude the remaining extraneous material submitted by Defendants and not consider that
evidence in determining this motion.

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III. DISCUSSION
A. Lanham Act Claims
Section 43 of the Lanham Act, provides for liability where a person in connection with
any goods,
uses in commerce any word, term, name, symbol, or device, or any
combination thereof, or any false designation of origin, false or
misleading description of fact, or false or misleading representation
of fact, which ... in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities, or geographic
origin of his or her or another person’s goods, services, or
commercial activities
15 U.S.C. § 1125(a)(1)(B). A plaintiff may recover where a defendant falsely advertises and
misrepresents its own goods or services, or where a defendant disparages or misrepresents
plaintiff’s goods or services. “The Lanham Act does not prohibit false statements generally. It
prohibits only false or misleading descriptions or false or misleading representations of fact
made about one’s own or another’s goods or services.” S.C. Johnson & Son, Inc. v. Clorox Co.,
241 F.3d 232, 238 (2d Cir. 2001) (quoting Groden v. Random House, Inc., 61 F.3d 1045, 1051
(2d Cir. 1995)). To state a claim for false advertising, a plaintiff must allege “(1) a false or
misleading statement (2) in connection with commercial advertising or promotion that (3) was
material, (4) was made in interstate commerce, and (5) damaged or will likely damage the
plaintiff.” Sussman-Automatic Corp. v. Spa World Corp., 15 F. Supp. 3d 258, 269 (E.D.N.Y.
2014) (internal quotation marks and citation omitted).
A plaintiff may establish that a statement is false under two theories: either by
demonstrating that challenged advertisement is “literally false, i.e., false on its face,” Time
Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 153 (2d Cir. 2007), or that the statement,
while literally true, constitutes an implied falsehood that is “nevertheless likely to mislead or
confuse consumers.” Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93, 112 (2d Cir. 2010).
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Statements constituting opinion are not actionable under Lanham Act if they “could not
reasonably be seen as stating or implying provable facts” regarding goods or services. Groden,
61 F.3d at 1051; see also Prof’l Sound Servs., Inc. v. Guzzi, No. 02 Civ. 8428, 2003 WL
22097500, at *2 (S.D.N.Y. Sept. 10, 2003) (“Subjective claims or opinions are not actionable
because they are not statements of fact that can be proven true or false”), aff’d, 159 F. App’x 270
(2d Cir. 2005). In addition, under “both the Lanham Act and the Constitutional free speech
clause, statements of opinion about commercial matters cannot constitute false advertising.”
Davis v. Avvo, Inc., 345 F. Supp. 3d 534, 541 (S.D.N.Y. 2018) (quoting J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition §27:67 (5th ed. 2017)).
In addition to proving falsity, a plaintiff must also show that the statement was material
such that it misrepresented an “inherent quality or characteristic of the product.” S.C. Johnson &
Son, 241 F.3d at 238 (internal quotation marks and citation omitted). The statement is not
material unless it would influence the purchasing decision of the consumer. See, e.g., Nat’l
Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 855 (2d Cir. 1997); Advanced Magnetic
Closure, Inc. v. Rome Fastener Corp., No. 98 CV 7766, 2005 WL 1241896, at *12 (S.D.N.Y.
May 24, 2005).
For a statement to constitute “commercial advertising or promotion” under the Lanham
Act, “a statement must be (1) ‘commercial speech,’ (2) made ‘for the purpose of influencing
consumers to buy defendant’s goods or services,’ and (3) ‘although representations less formal
than those made as part of a classic advertising campaign may suffice, they must be disseminated
sufficiently to the relevant purchasing public.”’ Gmurzynska v. Hutton, 355 F.3d 206, 210 (2d
Cir. 2004) (quoting Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57-58
(2d Cir. 2002)). “[T]he touchstone of whether a defendant’s actions may be considered

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‘commercial advertising or promotion’ under the Lanham Act is that the contested
representations are part of an organized campaign to penetrate the relevant market. Proof of
widespread dissemination within the relevant industry is a normal concomitant of meeting this
requirement.” Fashion Boutique, 314 F.3d at 57.
The complaint asserts two types of false advertising by Defendants, namely: (1) the use
of false and misleading statements regarding the quality of olive oil sold in supermarkets, which
is a product disparagement claim, and (2) the use of the UP mark to promote VFC-produced
olive oil. Plaintiff states that the “relevant question” on a motion to dismiss the Lanham Act
claims is “whether the complaint plausibly alleges that Defendants’ actions “were part of an
organized campaign to penetrate the olive [oil] market thereby damaging Plaintiff’s business
reputation and goodwill.” Pl. Opp. at 6. The answer to this query is “No.” To the extent
NAOOA seeks to hold all the Defendants jointly liable, there are absolutely no factual
allegations to support a theory that the Defendants were acting in concert to affect any plan.
The mere fact that the Retail Defendants sell VFC-produced olive oils bearing the UP mark is
not sufficient to tie them together in an organized campaign to promote those products to the
exclusion of others. Notably, the complaint does not allege that the Retail Defendants sell only
VFC-produced products. In addition, the complaint alleges only minimal, stray conduct by the
Defendants individually with the result that the complaint fails to state a plausible claim that any
one defendant alone conducted an organized campaign to penetrate the market on its own behalf.
1.

Defendants’ Statements and Product Disparagement

NAOOA claims that Defendants have made false, disparaging and misleading statements
about olive oils sold in supermarkets, and that this conduct constitutes product disparagement
and false advertising in violation of the Lanham Act. Defendants’ advertisements, media

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statements, published articles, and websites are “likely to mislead, or have misled, consumers
about the nature, qualities, and characteristics of olive oils sold in supermarkets including the
NAOOA members’ products and Defendants’ own products.” Compl. ¶48. As discussed above,
there are no plausible allegations supporting a suggestion that Defendants acted jointly, and
therefore the following analysis is limited to whether each individual statement/action constitutes
a violation by the relevant Defendant(s).
The complaint fails to allege, and NAOOA fails to enunciate a theory, that any statement
concerning the nature, quality, and characteristics of supermarket olive oils has any bearing on
NAOOA itself. Any allegation that an attack on unnamed “supermarket olive oil,” which may,
or may not have been produced by some unspecified member of the association, does not
inexorably extend to an attack on the reputation of NAOOA. The complaint alleges no facts that
plausibly support such a leap.
Even assuming arguendo that NAOOA has standing to assert a Lanham Act false
advertising claim as to the Defendants’ statements, those statements do not constitute violations
of the Act. NAOOA points to the following statements it contends are literally false: (1) VFC’s
website statement that “[o]ver 50% of the oil produced in the Mediterranean area is of such poor
quality that it must be refined to produce an edible product;” (2) D’Avolio’s statement allegedly
mischaracterizing the UC Davis Report; and (3) O Live Brooklyn’s statement in an interview
that “...if you’re buying olive oil from a supermarket, it might not be real olive oil, or it might be
old. In this case, it’s lost all of the goodness and freshness in it.” Id. ¶38. Pl. Opp. at 7 (citing

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Compl. ¶¶34, 37, 38).5 Each allegation regarding these statements contains a conclusory
assertion by NAOOA with no additional information suggesting why it is false. Although a
plaintiff need not prove falsity at the pleading stage, the allegation that a statement is false
without any support whatsoever does not raise that allegation above the speculative level.
NAOOA’s issue with the VFC statement is that “no support is offered for this false and
misleading statement.” Compl. ¶34. Beyond this conclusory statement, the complaint provides
no allegation to support its contention that the statement is, in fact, false. As to the O Live
Brooklyn statement, the complaint merely alleges that it “falsely suggest[s] that there is nothing
‘good’ about the supermarket olive oils and that they might not be real,” Compl. ¶38, but offers
no concrete factual allegation demonstrating the falsity of the statement. NAOOA does not
suggest that olive oil is immune from diminution of quality over time, thus making it difficult to
imagine that the O Live Brooklyn statement is literally false since for that to be the case, logic
dictates that the converse is true and that all olive oil sold in the supermarket is both fresh and
authentic. The D’Avolio statement is attacked because it “distorts findings of an alleged industry
report to represent to consumers that various brands sold in supermarkets hold no health
benefits.” Compl. ¶35. As an example of this distortion, NAOOA offers a quotation from the

5

NAOOA also cites a second statement attributed to D’Avolio in which D’Avolio allegedly
mischaracterizes the UC Davis Report by stating that “75-80% of what you’re getting is not what they say
on the label.” Compl. ¶36 (citing online article from wiat.com). The Court has reviewed the copy of the
full article and finds that the alleged statement set forth in the complaint does not appear in the article.
The only similar language appears in a paragraph discussing a 60 Minutes investigation of widespread
fraud in the olive oil importing process and states that “[s]ources consulted in the investigation suggested
as much as 80 percent of imported olive oil is tainted with other oils like sunflower oil or canola oil.”
Declaration of Anthony J. Patek, (“Patek Decl.”), DE [24] , Ex. J (“WIAT Article”), p.2. As the source
material demonstrates that the statement was not, in fact, made by anyone, including D’Avolio, the Court
declines to consider this allegation.

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D’Avolio website referencing the UC Davis report.6 The complaint again fails to identify the
alleged falsity or distortion.
Of course, a statement’s falsity is not determinative of a valid Lanham Act claim for false
advertising unless the misrepresentation is made about one’s or another’s goods and services.
The complaint fails to articulate how any of the statements relate to any goods or services of
NAOOA’s. For example, it is unclear how VFC’s statement about the poor quality of a portion
of the olive oil produced in the Mediterranean area relates in any way to the NAOOA, a trade
association of “marketers, packagers, producers and importers of olive oil for sale in the United
States and Canada.” Compl. ¶2.
NAOOA also argues that it has adequately pled that the statements are impliedly false,
having alleged that Defendants “made material, promotional statements falsely implying that any
olive oil other than a UP certified product lacks quality and health benefits [and] cause damage
to Plaintiff’s business reputation.” Pl. Opp. at 7. Consistent with the conclusory nature of the
allegations in the complaint, NAOOA fails to provide any further argument in support of the
complaint. The complaint lacks any nonspeculative allegations that support a suggestion that
any consumer would be misled by these statements to NAOOA’s detriment.

6

NAOOA is particularly dismissive of the UC Davis Report and Defendants’ purported reliance thereon,
contending that they “distorted the findings” of the report and knew that the report was “unreliable...and
had been widely discredited in the industry.” Pl. Opp. at 13. Although the Court has not considered the
UC Davis Report itself in deciding this motion to dismiss, it is noted that NAOOA’s attacks on the report
are overstated. Cases discussing the UC Davis Report do not “discredit” it, but rather point out the
limitations imposed on a consumer relying on it as the basis for a suit related to the purchase of items
produced by one of the brands discussed in the study. See Fahey v. Deoleo USA, Inc., No. 18-CV-2047,
2018 WL 5840664, at *2-3 (D.D.C. Nov. 8, 2018) (noting that the UC Davis study of 2010 did not, by
itself, support an action brought by a consumer who purchased a product in the District of Columbia in
2018 given the small sample size in the study, its tie to one geographic region, and the time elapsed since
the study was completed); Meyer v. Colavita USA, Inc., No. 10-61781-CIV, 2011 WL 13216980, at *5
(S.D. Fla. Sept. 13, 2011) (“the study paints a very incomplete picture from which one could at best infer
that a portion of Defendants’ extra virgin olive oil products, distributed and sold in certain locations in
California, do not meet all of the standards promulgated by the IOC for extra virgin olive oil”).

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Moreover, “[s]ubjective claims about products, which cannot be proven either true or
false, are not actionable.” Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir. 1995). Defendants
argue that the statements are opinion and/or “puffery” and are therefore not actionable under the
Lanham Act. Puffery “might take the form of an overstatement expressed in broad and
commendatory language, as opposed to a misleading description or false representation about an
inherent characteristic of a good or service.” Davis, 345 F. Supp. 3d at 541-42. Courts
considering whether a statement constitutes puffery look to several factors including vagueness,
subjectivity, and the inability to influence a consumer’s expectations. See Avola v. LouisianaPacific Corp., 991 F. Supp. 2d 381, 392 (E.D.N.Y. 2013).
The statements attributable to Defendants are largely vague and lacking in precise
meaning. See Crushed Olive Stmt (referring to “absurdly low standards”); O Live Brooklyn Stmt
(opining that supermarket olive oil “might not be real olive oil, or it might be old”); VFC Stmt
(over 50% of olive oil from the Mediterranean is of “such poor quality” and requires refining to
“produce an edible product”). As such, they consist merely of “generalized or exaggerated
statements which a reasonable consumer would not interpret as a factual claim upon which he
could rely.” Fink v. Time Warner Cable, 810 F. Supp. 2d 633, 644 (S.D.N.Y. 2011), partial
reconsideration granted on other grds, 2011 WL 5121068 (S.D.N.Y. Oct. 28, 2011).
2. Defendants’ Use of the UP Mark and Certification
The statements attributed to the Retail Defendants do not allude to, let alone specifically
reference, the UP Mark, and the complaint contains no factual allegations that the Retail
Defendants assisted in the creation of the UP mark or standard. The complaint is devoid of any
allegation of any conduct by the Retail Defendants beyond the fact that they sell products that
display the UP mark. This fact alone is conclusory and does not plausibly allege any involvement

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by the Retail Defendants in the UP mark or certification process. Accordingly, the Court
construes this claim as lying only against VFC.
The complaint fails to state a plausible claim that VFC’s use of the UP mark has affected
NAOOA in any regard. NAOOA alleges, in conclusory fashion, that use of the UP designation
is likely to cause consumers to believe, inter alia, that “NAOOA is not a reputable and reliable
trade association and fails to uphold quality and purity standards for olive oil.” Compl. ¶44.
There are no facts alleged to support this contention.
Even if NAOOA were able to establish standing to assert this claim, the complaint fails to
state it. NAOOA does not suggest that an entity cannot develop its own product standards;
indeed, it expressly alleges that it has its own Certified Quality Seal Program and standards.
Compl. ¶2. Nor does it claim that the advertising for products with the UP mark affects
NAOOA’s reputation. Instead, NAOOA’s claim is premised upon VFC’s alleged improper use
of the UP designation. See Pl. Opp. at 9 (NAOOA does not “take issue with defendant [VFC]
having its own standard,” but argues that VFC has misused the UP certification to mislead the
public by “suggesting consumers can only ensure quality and health benefits only by purchasing
UP-certified oils”). The allegations in the complaint state two theories of relief regarding the use
of the UP mark.
NAOOA first focuses on the “certification” aspect of the UP mark. The UP mark is
registered as a trademark with the USPTO, not as a certification mark. The UP mark displays a
“TM” symbol and includes the language “Highest Standard” and “Certified*Lab Tested*Sensory
Evaluated.” NAOOA does not contend that any of these statements are literally false, but
questions the use of the term “certification” because “there is no third party that certifies the
quality of the olive oils that bear the UP designation.” Compl. ¶28. Since the UP mark is only

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used on VFC’s products, NAOOA claims that its use is false and misleading because “consumers
are led to believe that the olive oil was certified, sponsored or approved by a[] third party.” Id.
¶29; but see id ¶25 (acknowledging that the UP website states that “UP is a new category of
olive oil created by VFC, which purportedly represents the highest quality olive oil in the
world” (emphasis added)). Thus NAOOA appears to speculate that the use of the UP mark is
impliedly false.
In order to constitute false advertising, the statements must be material in that they go to
an inherent quality or characteristic of the product, in this case the VFC-produced olive oil.
NAOOA has cited no case indicating that the mere use of the word “certified” is misleading, not
has it claimed that Defendants have advertised the UP program in any way that is misleading
with respect to the testing criteria. Significantly, NAOOA does not allege that the products that
are UP-designated do not, in fact, meet those standards, or that the standards are themselves
fraudulent, but rather focuses entirely upon hypothetical consumer confusion regarding who is
implementing the standard. In the absence of allegations regarding the certification process itself
as applied to VFC’s products, the actual identity of the tester is not material to the quality and
characteristics of the product. In other words, NAOOA has not plausibly alleged that the mere
omission of the identity of the tester alone is likely to influence the purchasing decision of a
consumer.
Second, NAOOA alleges that Defendants have marketed olive oil with the UP mark to
“mislead consumers into falsely believing that the recognized health benefits of olive oil can
only be achieved by consuming olive oil bearing” the UP mark. Compl. ¶31. There are no
factual allegations in the complaint to support this argument. The paragraphs cited by NAOOA
in support of this contention in its memorandum of law, see Pl. Opp. at 9, consist of conclusory,

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nonspecific allegations that “numerous statements have been made to mislead consumers into
falsely believing that the recognized health benefits of olive oil can only be achieved by
consuming olive oil bearing VFC’s UP standard and certification,” id., and that Defendants’
“statements and commercial efforts are likely to cause, or have caused, consumers to believe”
that the only way consumers can receive health benefits from olive oil is to purchase “products
bearing the UP certification and seal.” Id. ¶49.7 Conspicuously absent from the complaint is any
factual allegation that any Defendant has stated that only olive oil bearing the UP designation can
provide health benefits.
Further review of the complaint reveals no additional factual allegations that might
support NAOOA’s argument. As discussed supra, the statements made by the Retail Defendants
do not specify the UP mark in any way. The complaint cites two statements by VFC. One does
not mention the UP mark at all. See Compl. ¶34 (“[o]ver 50% of the oil produced in the
Mediterranean area is of such poor quality that it must be refined to produce an edible product”).
The second statement, purportedly taken from VFC’s website, states that
[t]he UP standards is reserved for the finest extra virgin olive oils
in the world, as such, the UP grade exceeds all existing European,
Italian, Spanish, Greek, North American, Californian, or any other
standard for the grade known as extra virgin olive oil. In order to
qualify for the UP grade, the extra virgin olive oil must meet or
exceed a comprehensive set of Production, Storage, transportation,
Testing, Chemistry, and Organoleptic requirements [created by
VFC].
Id. ¶30 (alterations in original). NAOOA does not allege that this statement is false or impliedly
false, but rather argues that “the UP standard and seal is reserved only for VFC olive oils and

7

NAOOA cites one additional paragraph of the complaint, which alleges that the UP certification and
seal “is also likely to cause, or has caused, consumers to believe that Defendants’’ olive oil products are
sponsored or approved by a third party” when it is instead a commercial and promotional tool to sell
VFC’s products. Compl. ¶50. This allegation does not allege any conduct by Defendants pertaining to
the health benefits of olive oils that are UP-designated.

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cannot, pursuant to VFC’s federal trademark rights, be used by any other producers or seller,
even if that producer’s products meet or exceed the parameters of VFC’s UP standard.” Id.
Assuming this allegation to be true, NAOOA has not established that VFC’s statements
regarding the UP mark and the standards on which it is granted constitute a Lanham Act claim
for false advertising.
B. Cancellation of Trademark Registration
NAOOA seeks cancellation of the UP mark trademark because it is “false and
misleading” and used by Defendants “to represent to the public that the olive oil which met this
standard is ‘certified’” despite the lack of registration as a certification mark. Compl. ¶88.
Federal courts are empowered to cancel the registration of a federally registered trademark. See
15 U.S.C. § 1119 (the court may “determine the right to registration, order the cancelation of
registrations, in whole or in part. . . and otherwise rectify the register with respect to the
registrations of any party to the action”). A plaintiff seeking cancellation of a registration must
establish that “(1) it has standing to bring a cancellation claim, and (2) there are valid grounds for
why the registration should not continue to be registered.” Citigroup Inc. v. City Holding Co.,
No. 99 Civ 10115, 2003 WL 282202, at *14 (S.D.N.Y. Feb. 10, 2003).
A party has standing to seek cancellation where it has “a real commercial interest in the
cancellation—that is, reason to believe it will be harmed absent relief.” Gucci Am., Inc. v.
Guess?, Inc., 868 F. Supp. 2d 207, 242 (S.D.N.Y. 2012). To demonstrate a “real interest,” the
party must “have a direct and personal stake in the outcome of the cancellation.” Quality Serv.
Grp. v. LJMJR Corp., 831 F. Supp. 2d 705, 712 (S.D.N.Y. 2011) (internal quotation marks and
citation omitted).

There are no factual allegations in the complaint that satisfy this requirement.

Notably, NAOOA does not allege that the UP mark creates any confusion with, or harm to,

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NAOOA’s own Certified Quality Seal Program. As NAOOA has not adequately pled its direct
stake in the cancellation of the UP mark, it does not have standing to seek cancellation of the UP
mark.
Assuming arguendo that NAOOA has standing to seek cancellation of the UP mark
registration, the remaining issue is whether it has plausibly pled any valid basis for cancellation. 8
If a mark has not yet become incontestable, a registration may be cancelled for any reason that
would have been prevented registration in the first place. See Patsy’s Italian Rest. v. Banas, 658
F.3d 254, 266 (2d Cir. 2011) (noting that “the principles applicable to the initial registrability of
a mark should also be applied to a claim seeking the cancellation of a registration that has not yet
become incontestable pursuant to Section 1065”). “The valid ground that must be alleged and
ultimately proved by a cancellation petitioner must be a statutory ground which negates the
[trademark holder’s] right to the subject registration.” Young v. AGB Corp., 152 F.3d 1377,
1380 (Fed. Cir. 1998) (internal quotation marks and citation omitted).
The complaint does not indicate the specific statutory basis supporting NAOOA’s claim
for cancellation of the UP mark. See Compl. ¶ 89 (alleging that the facts “justify cancellation of
the registration of [VFC’s] UP trademark, pursuant to Section 37 of the Lanham Act, 15 U.S.C.
§§1119 et seq.”). In its opposition to the current motion, NAOOA relies upon two statutory
provisions in the Lanham Act: the trademark registration section that bars registration of a mark
that “[c]onsists of or comprises . . .deceptive. . .matter,” 15 U.S.C. §1052(a), and the
cancellation section that permits a petition to cancel a registration for a mark where the

8

The grounds for cancellation of a mark vary based upon whether it is incontestable, having been in use
for five continuous years subsequent to registration, or contestable. The complaint is silent on this point,
as are the parties’ papers. The complaint identifies the registration number of the UP mark, 4,300,768,
which, according to the USPTO, was registered on March 12, 2013. See Kaplan, Inc. v. Yun, 16 F. Supp.
3d 341, 345 (S.D.N.Y. 2014) (noting that a court may take judicial notice of USPTO records). Thus the
UP mark registration was contestable at the time the complaint was filed.

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registered mark “is being used by . . . the registrant so as to misrepresent the source of the goods
or services on or in connection with which the mark is used.” 15 U.S.C. §1064(3).
The complaint does not specify what deceptive matter was used by VFC in its
registration. Instead, NAOOA contends that the use of the mark “as a certification mark in
commerce misrepresents the source of the services (i.e., the certification).” Pl. Opp. at 18. This
argument mischaracterizes the registration for the UP mark, which is not a service or
certification mark, but rather a trademark that identifies the source of the goods, i.e., olive oils
produced by VFC that meet a set of published standards. NAOOA again concentrates on the
term “Certified,” arguing that it gives the “commercial impression” that a “separate certifying
party is certifying different goods from different sources.” Pl. Opp. at 18. As the use of the UP
mark does not misrepresent the source of the goods, relief under §1064(3) is unavailable.
C. Unfair Competition
NAOOA alleges that Defendants’ false and misleading statements constitute common
law unfair competition in violation of New York law. It claims that the misrepresentations
mislead purchasers and the public to believe, inter alia, that NAOOA “is not a reputable and
reliable trade association and fails to uphold quality and purity standards for olive oil.” Compl.
¶57.
New York courts recognize two theories of unfair competition: palming off and
misappropriation. ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 476, 880 N.E.2d 852, 850
N.Y.S.2d 366 (2007). Palming off is “the sale of the goods of one manufacturer as those of
another.” Id. Misappropriation encompasses “[t]he principle that one may not misappropriate the
results of the skill, expenditures and labors of a competitor,” id. (internal quotation marks and
citation omitted), and “usually concerns the taking and use of the plaintiff’s property to compete

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against the plaintiff’s own use of the same property.” Roy Export Co. v. Columbia Broad. Sys.,
672 F.2d 1095, 1105 (2d Cir. 1982). The complaint does not state a clear claim for relief under
either theory, and NAOOA’s opposition papers offer no clarity, simply stating that “New York’s
Unfair Competition laws mirror the federal Lanham Act. Thus, for the reasons set forth above,
Plaintiff’s state law unfair competition claims are properly pled and should be allowed to
proceed.” Pl. Opp. at 18.
Reviewing the complaint, there are clearly no allegations that suggest a palming off
theory or that Defendants have misappropriated NAOOA’s property. A misappropriation theory
may also apply, under certain circumstances, to a business’s goodwill. “[W]hen a business,
through renown in New York, possesses goodwill constituting property or a commercial
advantage in this state, that good will is protected from misappropriation under New York unfair
competition law.” ITC Ltd., 9 N.Y.3d at 479. To the extent the complaint suggests a claim for
misappropriation of NAOOA’s goodwill, it fails. Plaintiff does not allege that it enjoyed specific
renown in New York, or that it possessed goodwill that Defendants misappropriated. Instead,
NAOOA alleges that the Defendants’ misrepresentations were made with the intent of maligning
NAOOA’s reputation. As the allegations fail to state a claim for unfair competition under New
York law, Defendants’ motion to dismiss this claim is granted.
D. NY GBL §§349 and 3509
GBL § 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade
or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law §349. GBL

9

The Court analyzes the sufficiency of the complaint under the pleading standard of Rule 8(a) rather than
Rule 9(b). See Leonard v. Abbott Laboratories, Inc., No. 10-CV-4676, 2012 WL 764199, at *19
(E.D.N.Y. Mar. 12, 2012) (noting that GBL claims, “regardless of whether they ‘sound in fraud,’ or are
premised on specific misrepresentations rather than an ‘advertising scheme’, are not subject to the
heightened pleading requirement of Rule 9(b)”).

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§350 bars “[f]alse advertising in the conduct of any business, trade or commerce or in the
furnishing of any service in this state.” N.Y. Gen. Bus. Law §350. Under these sections, “a
plaintiff ‘must prove three elements: first, that the challenged act or practice was consumeroriented; second, that it was misleading in a material way; and third, that the plaintiff suffered
injury as a result of the deceptive act.’” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d
473, 490 (2d Cir. 2014) (quoting Stutman v. Chemical Bank, 95 N.Y.Y.2d 24, 29, 731 N.E.2d
608, 709 N.Y.S.2d 892 (2000)); see also Cohen v. Caspar Sleep Inc., No. 17CV9325, 2018 WL
3392877, at *7 (S.D.N.Y. July 12, 2018) (noting that sections 349 and 350 “share the same
elements”). Deceptive acts and practices are viewed objectively and are “limited to those likely
to mislead a reasonable consumer acting reasonably under the circumstances.” Oswego
Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 647 N.E.2d
741, 623 N.Y.S.2d 529 (1995).
An allegation of a defendant’s act of deception is not sufficient by itself to state a claim.
The alleged act “must have a broader impact on consumers at large” and must “threaten the
public interest, such as potential danger to public health or safety.” Fischer v. Forrest, No. 14
CIV. 1304, 2015 WL 195822, at *13 (S.D.N.Y. Jan. 13, 2015) (internal quotation marks and
citations omitted); see also Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.
1995) (the critical question “is whether the matter affects the public interest in New York”).
Thus, the complaint “must allege facts demonstrating that ‘the disputed conduct had a broad
impact on consumers at large and not just on the plaintiff.” Bell v. Deutsche Bank, No.
18CV01593, 2019 WL 4917901, at *7 (E.D.N.Y. Sept. 30, 2019) (internal quotation marks and
citation omitted). “Where a plaintiff makes only conclusory allegations of impact on consumers
at large, a GBL §349 claim must be dismissed.” Miller v. HSBC Bank U.S.A., N.A., No. 13 CIV.

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7500, 2015 WL 585589, at *8 (S.D.N.Y. Feb. 11, 2015). Here, NAOOA has failed to adequately
allege that conduct or advertising by Defendants was “consumer-oriented” within the meaning of
the statutes.
NAOOA repeats the same generalized allegations of harm to the consuming public
regarding consumer confusion about the quality of olive oils sold in supermarkets and the lack of
health benefits from those products. In addition to being vague and nonspecific, those
allegations affect NAOOA’s members, not NAOOA itself. As to any impact on NAOOA itself,
the complaint alleges that consumers are misled into believing “that NAOOA is not a reputable
and reliable trade association and fails to uphold quality and purity standards for olive oil.”
Compl. ¶65. NAOOA has not articulated how this conduct results in any injury to consumers or
to the public interest.
Furthermore, statements that are opinion or puffery do not form the basis for an action
under these sections. See, e.g., In re Scotts EZ Seed Litig., No. 12 CV 4727, 2013 WL 2303727,
at *11 (E.D.N.Y. 2013) (dismissing claims under §§ 349 and 350 as “based on nonactionable
puffery”); Verizon Directories Corp. v. Yellow Book USA, Inc., 309 F. Supp. 2d 401, 405
(E.D.N.Y. 2004) (“[p]uffery is not actionable under sections 349 and 350 for much the same
reasons that it is not illegal under the Lanham Act”). “If an alleged misrepresentation would not
deceive a reasonable person because it is vague or amounts to mere puffery or opinion, then a
claim under the consumer protection statutes may be dismissed, as a matter of law, on a motion
to dismiss.” Leonard, 2012 WL 764199, at *21 (emphasis in original). As discussed above, no
reasonable consumer would be deceived by Defendants’ vague statements and thus dismissal is
warranted on this basis as well.

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E. Product Disparagement/Trade Libel and Defamation/Slander
Under New York law, defamation and disparagement in the commercial context are two
distinct claims. See Ruder & Finn Inc. v. Seaboard Sur. Co., 52 N.Y.2d 663, 670, 422 N.E.2d
518, 439 N.Y.S.2d 858 (1981). Plaintiff asserts claims for both, utilizing alternative labels in
two counts of the complaint. Count IV is entitled “Product Disparagement/Trade Libel,” and
Count V is labeled “Defamation/Slander.”
1. Defamation/Slander
To state a claim for defamation under New York law, a plaintiff must establish “(1) a
written defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3)
fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability.”
Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019). In the commercial context,
“false statements attacking the integrity or credit of a business constitute slander per se.”
Fashion Boutique, 314 F.3d at 59 (2d Cir. 2002) (citing Ruder, 52 N.Y.2d at 670 (“[w]here a
statement impugns the basic integrity . . . of a business, an action for defamation lies and injury
is conclusively presumed”).
“The ‘of and concerning’ requirement stands as a significant limitation on the universe of
those who may seek a legal remedy for communications they think to be false and defamatory
and to have injured them.” Kirch v. Liberty Media Corp., 449 F.3d 388, 399-400 (2d Cir. 2006).
Thus the first element inquiries “should ordinarily be resolved at the pleading stage.” Church of
Scientology Int’l v. Behar, 238 F.3d 168, 173 (2d Cir. 2001). “[T]o withstand a motion to
dismiss, a plaintiff must ‘advance[] colorable claims of having been identified and described by
the defamatory comment.’” Gristede’s Foods, Inc. v. Poospatuck (Unkechauge) Nation, No. 06-

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cv-1260, 2009 WL 4547792, at *12 (E.D.N.Y. Dec, 1, 2009) (quoting Geisler v. Petrocelli, 616
F.2d 636, 640 (2d Cir. 1980)).
It is clear that none of the statements expressly refer to NAOOA and thus its claim cannot
survive the first requirement that the statement be “of and concerning” NAOOA. Most of the
alleged statements concern the quality of unspecified brands of supermarket olive oils. The lone
statement that could be seen to impact NAOOA is the Crushed Olive statement’s reference to
“numerous trade associations,” which, according to NAOOA, could only be referring to it, given
that it is the largest trade association. While reference to the defamed party “may be indirect and
may be shown by extrinsic facts, the burden on the plaintiff[] is not a light one,” and under those
circumstances, “the party alleging defamation must show that it is reasonable to conclude that
the publication refers to [it] and the extrinsic facts upon which that conclusion is based were
known to those who read or heard the publication.” Gristede’s Foods, 2009 WL 4547792, at *13
(internal quotation marks and citation omitted). Here, the allegation is too vague and nonspecific
to plausibly allege that the average consumer/reader is aware of any olive oil trade association, or
that he or she would necessarily conclude that the reference was to NAOOA specifically.
NAOOA itself only alleges that it is the “largest” trade association, and that its members
comprise approximately 55-60% of olive oil sales in the United States. The allegation that
NAOOA is the largest trade association implies that there are others and thus the statement could
just as easily apply to one or more trade associations representing the remaining 35-40% of sales.
As the complaint provides no basis for concluding that the statements attributed to Defendants
were of and concerning NAOOA, the motions to dismiss this claim are granted.

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2. Trade Libel/Product Disparagement
Trade libel, also known as product disparagement, is the “disparagement of a business’s
goods or services” and “does not protect the reputation of the business as such.” Van-Go Transp.
Co. v. New York City Bd. of Educ., 971 F. Supp. 90, 98 (E.D.N.Y. 1997).

“Where, however, the

statement is confined to denigrating the quality of the business’ goods or services, it could
support an action for disparagement, but will do so only if malice and special damages are
proven.” Ruder, 52 N.Y.2d at 670-71; see also Fashion Boutique, 314 F.3d at 59 (“the plaintiff
must show that the defendant published an oral, defamatory statement directed at the quality of a
business’s goods and must prove that the statements caused special damages”).
The complaint again fails to adequately allege that any of the statements made by
Defendants were directed at NAOOA. In addition, New York law requires that special damages
be pleaded. Special damages are defined as “the loss of something having economic or
pecuniary value and must be fully and accurately stated, with sufficient particularity to identify
actual losses.” Jin Yung Chung v. Sano, No. 10-CV-2301, 2011 WL 1298891, at *6 (E.D.N.Y.
Mar. 31, 2011) (internal quotation marks and citation omitted). “In pleading special damages,
actual losses must be identified and causally related to the alleged tortious act.” Sandler v.
Simoes, 609 F. Supp. 2d 293, 303 (E.D.N.Y. 2009) (quoting Waste Distillation Tech., Inc. v.
Blasland & Bouck Engineers, P.C., 136 A.D.2d , 633, 633, 523 N.Y.S.2d 875 (2d Dep’t 1988)).
“[G]eneral allegations of lost sales from unidentified customers are insufficient” and “[r]ound
figures or a general allegation of a dollar amount . . . will not suffice.” Dentsply Int’l Inc. v.
Dental Brands for Less LLC, No. 15 Civ. 8775, 2016 WL 6310777, at *6 (S.D.N.Y. Oct. 27,
2016) (internal quotation marks and citations omitted).

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The complaint does not contain any allegations regarding NAOOA’s damages, much less
allegations with the specificity required to withstand a motion to dismiss. In its opposition
papers, NAOOA does not address the absence of allegations regarding special damages but
summarily states that “[d]iscovery will further show special damages through money spent on
corrective advertising.” Pl. Opp. at 25. Plaintiff further argues that Judge Spatt, in finding that
NAOOA had individual standing, concluded that damages had been adequately alleged. Plaintiff
overstates the prior ruling in this regard. The motion under consideration at that time sought
dismissal pursuant to Rule 12(b)(1) and as such, Judge Spatt considered information regarding
damages that was contained in affidavits. See generally Chamaidan v. Tomy B. Haircare Inc.,
No. , 2019 WL 4917895, at *6 (E.D.N.Y. Sept. 30, 2019) (on a Rule 12(b)(1) challenge to
plaintiff’s standing, the Court “can consider affidavits from the parties and is not restricted to
considering the factual allegations in the complaint”). The current analysis is taken under Rule
12(b)(6) and thus is limited to the well-pled allegations of the complaint, which does not contain
any allegations of damages, and other materials discussed above.
F. Claims Against Nonmoving Party
Defendant D’Avolio has not moved to dismiss the complaint, however, “[a] district court
has the power to sua sponte dismiss claims against nonmoving defendants for failure to state a
claim, as long as the plaintiff has been given an opportunity to be heard.” Whitfield v.
O’Connell, No. 09 Civ. 1925, 2010 WL 1010060, at *7 n.4 (S.D.N.Y. Mar. 18, 2010), aff’d, 402
F. App’x 563 (2d Cir. 2010). Here, NAOOA has addressed its claims against D’Avolio
throughout its papers. It referenced its allegations regarding D’Avolio as part and parcel of the
arguments raised in its opposition. See Pl. Opp. at 6 (false advertising and product
disparagement); id.at 7 (statements are literally and impliedly false); id.at 9 (targeted and

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concerted effort to attack NAOOA); id. at 14 (commercial speech); id. at 21 (false and
misleading supporting defamation claim); id. at 24 (trade libel); id. at 25 (joint liability). In
addition, the Court’s rulings regarding the lack of support for a claim that all Defendants acted in
concert and pertaining to use of the UP mark, apply equally to the claims against all the Retail
Defendants, including D’Avolio. As NAOOA has had a fair opportunity to be heard on the
issues, the claims against D’Avolio are also dismissed.
G. Leave to Amend.
Leave to amend a complaint “should be freely given when justice so requires,” FED. R.
CIV. P. 15(a)(2), but whether to grant or deny leave to amend lies in the sound discretion of the
court. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). Defendants
argue that the complaint should be dismissed with prejudice. See Crushed Olive Memorandum
at 20. In its response, Plaintiff includes a request for leave to amend which reads in its entirety
as follows: “Plaintiff submits that the Complaint should be allowed to proceed as pled. If the
Court finds otherwise, Plaintiff respectfully requests the opportunity to amend the complaint at
this early stage in the proceedings” Pl. Opp. at 25. NAOOA’s request is both untimely and
deficient.
Defendants have made, in total, four (4) motions to dismiss detailing the complaint’s
deficiencies. NAOOA could have amended as of right, see FED. R. CIV. P. 15 (a)(1)(B), it could
have attempted to amend with Defendants’ consent, or it could have moved or cross-moved to
amend. Thus, Plaintiff was made aware of the defects in the complaint, had numerous
opportunities to address them, and failed to utilize those opportunities. Brown v. Cerberus
Capital Mgmt., L.P., 703 F. App’x 11, 15 (2d Cir. 2017) (summary order) (no abuse of discretion
in denying leave to amend where plaintiffs “enjoyed a full opportunity to amend, having been

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apprised of Defendants’ views of the original complaint’s shortcomings”). Instead of taking any
of these actions, NAOOA opted to wait for a decision from this Court so that it could then
attempt to tailor an amended pleading. However, a plaintiff is “not entitled to an advisory
opinion from the Court informing [it] of the deficiencies of the complaint and then an
opportunity to cure those deficiencies.” In re Eaton Vance Mut. Funds Fee Litig., 403 F. Supp.
2d 310, 318 (S.D.N.Y. 2005) (internal quotation marks and citation omitted), aff’d sub nom.
Bellikoff v. Eaton Vance Corp., 481 F.3d 110 (2d Cir. 2007).
NAOOA’s pro forma request is also substantively deficient in that it fails to provide any
proposed additional facts that would raise its claims from implausible to plausible. See, e.g., City
of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 188 (2d Cir. 2014)
(denial of leave to amend appropriate where “plaintiffs have identified no additional facts or
legal theories—either on appeal or to the District Court—they might assert if given leave to
amend”); In re Goldman Sachs Mortgage Serv’g S’holder Derivative Litig., 11-civ-4544, 2012
WL 3293506, at *11 (S.D.N.Y. 2012) (denying leave to amend where plaintiffs failed to
articulate how an amendment would cure pleading defects). Moreover, NAOOA has failed to
submit a proposed amended complaint including any proposed factual enhancements.
Ackermann v. N.Y. City Dep’t of Info.Tech. & Telecommc’ns, No. 09-CV-2436, 2010 WL
1172625 at *1 (E.D.N.Y. Mar. 24, 2010) (“Any motion to amend must attach the proposed
amended complaint specifying the new claims.”). This failure provides an additional basis to
deny it leave to amend. See Schwasnick v. Fields, No. 08-civ-4759, 2010 WL 2679935, at *11
(E.D.N.Y. June 30, 2010) (the court may “deny leave to amend where the Plaintiff[] fails to
submit a proposed pleading and does not explain why”); LaBarbera v. Ferran Enters., Inc. No.

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05-civ-2678, 2009 WL 367611, at *3 (E.D.N.Y. Feb. 10, 2009) (“Denial of the motion to amend
is also warranted by Plaintiffs’ unexplained failure to submit a proposed pleading”).
In light of Plaintiff’s failure to amend, or move to amend, previously despite numerous
opportunities to do so, its failure to provide a proposed amended complaint, and its failure to
articulate in any manner how amendment would cure the pleading defects, leave to amend is
denied.
IV. CONCLUSION
For all the foregoing reasons, Defendants’ motions to dismiss [64], [65] pursuant to Rule
12(b)(6) are granted, and the case is dismissed. The Clerk of the Court is directed to close the
case.
SO ORDERED.
/s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: Central Islip, New York
April 30, 2020

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