ChowNow, Inc v. Owner.com

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
CHOWNOW, INC,
Plaintiff,
v.
OWNER.COM,
Defendant.
Case No. 25-cv-07315-VKD
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTION TO DISMISS, WITH LEAVE
TO AMEND
Re: Dkt. No. 15
Plaintiff ChowNow, Inc. (“ChowNow”) brings this action, asserting seven claims against
defendant Owner.com, Inc. (“Owner.com”). Dkt. No. 1. Owner.com moves to dismiss the
complaint for lack of standing, pursuant to Rule 12(b)(1), and for failure to state a claim, pursuant
to Rule 12(b)(6). Dkt. No. 15. ChowNow opposes the motion. Dkt. No. 24. The Court heard
oral argument on the motion on December 16, 2025. Dkt. No. 27.1
Upon consideration of the moving and responding papers and the oral arguments
presented, the Court denies Owner.com’s motion to dismiss for lack of standing and grants in part
and denies in part its motion to dismiss for failure to state a claim, with leave to amend.
I. BACKGROUND
According to the complaint, plaintiff ChowNow provides a “digital platform for
restaurants to attract, engage, and retain customers.” Dkt. No. 1 ¶ 9. ChowNow alleges that it
serves over 22,000 restaurant partners. Id. It also alleges that it owns a registered trademark,
CHOWNOW, that it uses in connection with its business. Id. ¶ 10.
1 All parties have consented to magistrate judge jurisdiction. Dkt. Nos. 18, 22.
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ChowNow asserts that defendant Owner.com is a direct competitor that has “engaged in a
pattern of unfair, misleading and deceptive business practices.” Id. ¶¶ 25, 26. In particular,
ChowNow alleges that Owner.com’s comparative advertising includes false and misleading
statements about ChowNow on various websites, including Owner.com’s website, the
RestaurantGPT website, and a YouTube channel. Id. ¶ 30.
In this action, ChowNow asserts the following seven claims against Owner.com: (1) false
advertising and trademark infringement in violation of the Lanham Act, 15 U.S.C. § 1125(a); (2)
trademark infringement in violation of the Lanham Act, 15 U.S.C. § 1114; (3) violation of
California’s unfair competition law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; (4) violation
of California’s false advertising law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq.; (5) trade
libel; (6) intentional interference with contractual relations; and (7) intentional interference with
prospective economic advantage. Id. at 43-50. ChowNow claims that because of Owner.com’s
conduct, ChowNow has suffered “lost sales and revenue, lost economic prospects, harm to
ChowNow’s registered intellectual property, and reputational harm.” Id. ¶ 1. It alleges “monetary
losses of at least hundreds of thousands of dollars,” and erosion of the goodwill associated with its
CHOWNOW trademark. Id. ¶¶ 33, 190. ChowNow seeks injunctive relief; damages, including
punitive damages; attorneys’ fees and costs; and pre-judgment and post-judgment interest. Id. at
50-52. ChowNow also seeks “an accounting of Owner.com’s profits resulting from Owner.com’s
false and misleading advertising and marketing, trademark infringement, and unfair competition
and such profits to be paid over to ChowNow.” Id. at 51.
II. LEGAL STANDARD
A. Rule 12(b)(1)
“[L]ack of Article III standing requires dismissal for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1).” Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th
Cir. 2011). To establish standing, a plaintiff must demonstrate (1) an “injury in fact,” (2) that is
fairly traceable to the challenged conduct of the defendant, and (3) likely to be redressed by a
favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). “To establish
injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected
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interest that is concrete and particularized and actual or imminent, not conjectural or
hypothetical.” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (internal quotation marks
omitted). To be particularized, an injury “must affect the plaintiff in a personal and individual
way,” and to be concrete, the injury must be real and not abstract. Id. at 339-40 (internal quotation
marks omitted).
A plaintiff has the burden to establish standing “with the manner and degree of evidence
required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. “[S]hould a plaintiff
fail to meet his standing burden, the lawsuit must be dismissed under Rule 12(b)(1).” Bass v.
Facebook, Inc., 394 F. Supp. 3d 1024, 1033 (N.D. Cal. 2019).
B. Rule 12(b)(6)
A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of
the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is
appropriate where there is no cognizable legal theory or an absence of sufficient facts alleged to
support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
699 (9th Cir. 1988)). In such a motion, all material allegations in the complaint must be taken as
true and construed in the light most favorable to the claimant. Id.
Rule 8(a)(2) requires that the complaint provide only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “[f]actual allegations
must be enough to raise a right to relief above the speculative level,” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citations omitted). Only plausible claims for relief will survive a
motion to dismiss. Iqbal, 556 U.S. at 679. A claim is plausible if the facts pled permit the court to
draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. A
plaintiff does not have to provide detailed facts, but the pleading must include “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Moreover, the Court is not
required to “‘assume the truth of legal conclusions merely because they are cast in the form of
factual allegations.’” Prager Univ. v. Google LLC, No. 17-cv-06064-LHK, 2018 WL 1471939, at
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*3 (N.D. Cal. Mar. 26, 2018) (quoting Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per
curiam)). Nor does the Court accept “allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049,
1055 (9th Cir. 2008).
C. Rule 9(b)
Allegations sounding in fraud, including allegations of false advertising, are subject to the
heightened pleading standard under Rule 9(b). Clorox Co. v. Reckit Beckiser Grp. PLC, 398 F.
Supp. 3d 623, 634 (N.D. Cal. 2019) (stating that Lanham Act, UCL, and FAL claims sounding in
fraud are subject to the Rule 9(b) standard). Under Rule 9(b), allegations of fraud must be pled
“with particularity.” Fed. R. Civ. P. 9(b). However, “[m]alice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.” Id. “A pleading is sufficient under Rule
9(b) if it identifies the circumstances constituting fraud so that the defendant can prepare an
adequate answer from the allegations.” Neubronner v. Milken, 6 F.3d 666, 671-72 (9th Cir.
1993) (citations and quotations omitted). This includes pleading “the who, what, when, where,
and how of the misconduct charged.” Whiteside v. Kimberly Clark Corp., 108 F.4th 771, 785 (9th
Cir. 2024) (citation and quotations omitted).
III. DISCUSSION
Owner.com moves to dismiss the complaint pursuant to Rule 12(b)(1) for lack of subject
matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim. Dkt. No. 15. The
parties also request judicial notice of various documents and YouTube videos. Dkt. Nos. 15-7, 24-
2. The Court first addresses the parties’ requests for judicial notice before considering
Owner.com’s Rule 12(b)(1) arguments regarding standing and Rule 12(b)(6) arguments regarding
failure to state a claim for relief.
A. Parties’ Requests for Judicial Notice
In conjunction with its motion, Owner.com filed a request for judicial notice of five
documents: (1) a January 15, 2025 screen print showing ChowNow’s Capterra review; (2) a
January 15, 2025 screen print showing Owner.com’s Capterra review; (3) an October 9, 2025
screen print of Owner.com’s website; (4) a September 24, 2024 YouTube video posted by
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Owner.com; and (5) a September 4, 2024 YouTube video posted by Owner.com. Dkt. No. 15-7.
ChowNow opposes Owner.com’s request for judicial notice. Dkt. No. 24-2. ChowNow argues
that if the Court takes judicial notice of Owner.com’s materials, it should also take judicial notice
of ChowNow’s Exhibits 6 through 14 to the complaint. Id. at 1, 5-8. Owner.com opposes
ChowNow’s request for judicial notice. Dkt. No. 26-1.
Federal Rule of Evidence 201 states that “[t]he court may judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). These reliable
sources include “matters of public record . . . as long as the facts noticed are not subject to
reasonable dispute.” Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir.
2007) (cleaned up). Documents appended to or incorporated into the complaint or which properly
are the subject of judicial notice may be considered along with the complaint when deciding a
Rule 12(b)(6) motion. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 998 (9th Cir. 2018).
The Court declines to take judicial notice or incorporate by reference materials intended to
undermine the factual allegations in the complaint at this stage. See id. at 1003 (“[I]t is improper
to assume the truth of an incorporated document if such assumptions only serve to dispute facts
stated in a well-pleaded complaint.”). Because the facts contained in Owner.com’s proposed
materials are subject to reasonable dispute and ChowNow disputes the authenticity of the
materials, the Court will not take notice of Owner.com’s materials.
Exhibits 6 through 14 to the ChowNow complaint are already part of the record before the
Court, so there is no need to take judicial notice of their existence. However, the Court does not
take judicial notice of disputed facts contained within any of those exhibits.
B. Rule 12(b)(1): Article III Standing
Owner.com contends that ChowNow lacks standing. Dkt. No. 15 at 11. The Court begins
by addressing Owner.com’s threshold argument that ChowNow lacks standing under Article III.
“In a false advertising suit, a plaintiff establishes Article III injury if some consumers who
bought the defendant’s product under a mistaken belief fostered by the defendant would have
otherwise bought the plaintiff’s product.” Allbirds, Inc. v. Giesswein Walkwaren AG, No. 19-cv-
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05638-BLF, 2020 WL 6826487, at *4 (N.D. Cal. June 4, 2020) (quoting TrafficSchool.com, Inc. v.
Edriver Inc., 653 F.3d 820, 825 (9th Cir. 2011)). “A party may prove its injury (1) by using lost
sales data, that is ‘actual market experience and probable market behavior,’ or (2) ‘by creating a
chain of inferences showing how defendant’s false advertising could harm plaintiff’s business.’”
Id. “Evidence of direct competition is strong proof that plaintiffs have a stake in the outcome of
the suit, so their injury isn’t conjectural or hypothetical.” Id.
Owner.com argues that ChowNow lacks Article III standing because it fails to show “lost
sales data” or a “chain of inferences” showing injury traceable to Owner.com’s alleged conduct.
Dkt. No. 15 at 11-12. Owner.com notes that “there is no factual allegation that [p]laintiff has lost
a single specific customer as a result of anything that Owner.com did or said over the past several
years.” Id. at 12. ChowNow argues that it has adequately alleged injuries directly caused by
Owner.com because it alleges that Owner.com’s false advertising “eroded the goodwill associated
with ChowNow” and “directly resulted in ChowNow losing actual customers, sales, and revenue,”
including “hundreds of thousands of dollars.” Dkt. No. 24 at 8-9 (quoting Dkt. No. 1 ¶¶ 33, 190).
Owner.com responds that ChowNow’s allegations are “vague” and “lack a factual underpinning.”
Dkt. No. 26 at 3.
ChowNow need not allege that it lost a specific customer because of a specific statement
by Owner.com in order to establish standing. Such a heightened Article III standing requirement
“would seem to ‘confuse[] the jurisdictional inquiry (does the court have power under Article III
to hear the case?) with the merits inquiry (did the defendant violate the law?).’” Intuit Inc. v. HRB
Tax Grp., Inc., No. 5:24-cv-00253-BLF, 2025 WL 1168897, at *3 (N.D. Cal. Apr. 22, 2025)
(quoting Ecological Rts. Found. v. Pac. Gas & Elec. Co., 874 F.3d 1083, 1094 (9th Cir. 2017)).
“[W]hile the causal connection put forward for standing purposes cannot be too speculative or rely
on conjecture about the behavior of other parties, it need not be so airtight at this stage of the
litigation as to demonstrate that the plaintiff would succeed on the merits.” Id. at *4 (cleaned up)
(citation omitted); see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
134 n.6 (2014) (“Proximate causation is not a requirement of Article III standing, which requires
only that the plaintiff’s injury be fairly traceable to the defendant’s conduct.”).
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ChowNow has adequately alleged an injury through a “chain of inferences” to establish
Article III standing. As a first link in the chain of inferences supporting standing, ChowNow
alleges that ChowNow and Owner.com are direct competitors, such that the Court can reasonably
infer that the parties compete for the same revenue in the restaurant digital platforms market. See
Dkt. No. 1 ¶ 26. The second link in the chain is that the false advertising is material and likely to
affect customer decisions. ChowNow alleges that Owner.com’s false representations about the
parties’ Capterra scores, including scores for “Ease of Use,” “Value for Money,” “Available
Features,” and “Customer Service,” harm ChowNow’s “business relations and reputation by
deceiving current and prospective customers.” Id. ¶¶ 49, 50, 55. ChowNow asserts that
Owner.com’s false statements are the kind that restaurant owners “would reasonably rely on . . .
when deciding which digital platform service to purchase.” Id. ¶ 40; see also id. ¶¶ 48, 109, 201.
ChowNow’s allegations are sufficient at this stage to establish Article III standing. See Scilex
Pharms. Inc. v. Sanofi-Aventis U.S. LLC, No. 21-cv-01280-JST, 2021 WL 11593043, at *3 (N.D.
Cal. Aug. 16, 2021) (pain relief patch seller sufficiently pled injury by alleging that defendants
advertised their products as containing “the maximum amount of lidocaine available in patch
form” and that such advertising deceived consumers into buying defendants’ products instead of
plaintiff’s products); Intuit, 2025 WL 1168897, at *4 (tax preparation product provider sufficiently
alleged that competitor’s advertising regarding “expert final review” was “likely to affect
consumer purchasing decisions” and that “expert final review is material to consumers”).
The Court concludes that ChowNow has alleged a factual basis for Article III standing.
C. Rule 12(b)(6): Statutory Standing
Owner.com also contends that ChowNow lacks standing under the Lanham Act, UCL, and
FAL. Dkt. No. 15 at 11-15; Dkt. No. 26 at 4-6. Lack of statutory standing requires dismissal for
failure to state a claim under Rule 12(b)(6). Maya, 658 F.3d at 1067; see Lexmark, 572 U.S. at
128 n.4 (statutory standing inquiry “does not implicate subject-matter jurisdiction”).
1. Lanham Act: False Advertising
Statutory standing under the Lanham Act involves a more demanding inquiry
than Article III standing. Eli Lilly & Co. v. Adonis Health, Inc., No. 25-cv-03536-JST, 2025 WL
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2721684, at *2 (N.D. Cal. Sept. 24, 2025) (citing ThermoLife Int’l LLC v. BPI Sports, LLC, 2022
WL 612669 (9th Cir. 2022)). The Lanham Act does not allow “all factually injured plaintiffs to
recover.” Lexmark, 572 U.S. at 129. Although Owner.com contends that ChowNow “lacks
standing under . . . the Lanham Act” and provides the legal standard for Lanham Act standing for
a false advertising claim, Owner.com does not brief the issue separately from its arguments
regarding Article III standing in its motion to dismiss; it addresses this issue only in its reply. See
Dkt. No. 15 at 11-12; Dkt. No. 26 at 4-5. In addition, the parties’ arguments regarding Lanham
Act statutory standing appear to focus solely on ChowNow’s standing to bring a false advertising
claim, and not on ChowNow’s standing to bring a trademark infringement claim. See Dkt. No. 24
at 9-10; Dkt. No. 26 at 4-5. For this reason, the Court considers only whether ChowNow has
statutory standing to sue for false advertising under the Lanham Act.
To establish standing for a false advertising claim under the Lanham Act, a plaintiff must
allege that its injury (1) is within the zone of interests protected by the Lanham Act and (2) was
proximately caused by defendant’s violation of the Lanham Act. Lexmark, 572 U.S. at 127-32.
For an injury to be “within the zone of interest in a § 1125(a) false-advertising suit, a plaintiff
must allege an injury to a commercial interest in reputation or sales.” Id. at 131-32. When the
parties are direct competitors, there is a presumption of harm. See TrafficSchool.com, 653 F.3d at
825-26. The requirement that a plaintiff be within the “zone of interest” is not “especially
demanding,” and “forecloses suit only when a plaintiff’s 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.” Lexmark, 572 U.S. at 130 (citations and quotations
omitted). For an injury to be “proximately caused” by defendant’s conduct, a plaintiff must allege
“economic or reputational injury flowing directly from the deception wrought by the defendant’s
advertising” which “occurs when deception of consumers causes them to withhold trade from the
plaintiff.” Id. at 133.
ChowNow sufficiently alleges that its injuries are within the “zone of interest” protected
by the Lanham Act because the parties are direct competitors. See Dkt. No. 1 ¶ 26. In addition,
ChowNow alleges that Owner.com’s “deceitful and misleading business practices have directly
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resulted in ChowNow losing actual customers, sales and revenue,” including specifically that
Owner.com induced ChowNow’s former customer, Metro Pizza, to switch to Owner.com. Id.
¶¶ 33, 128. This type of allegation of “diversion of sales to a direct competitor [is the]
paradigmatic direct injury from false advertising.” See Lexmark, 572 U.S. at 138; see also
TrafficSchool.com, 653 F.3d at 825 (“[A] false advertising plaintiff need only believe that he is
likely to be injured in order to bring a Lanham Act claim.”).
Therefore, the Court finds that ChowNow has sufficiently alleged both the “zone of
interest” and “proximate causation” necessary to establish standing to sue for false advertising
under the Lanham Act.
2. UCL and FAL
Owner.com argues that ChowNow also lacks statutory standing for its UCL and FAL
claims because ChowNow “did not rely on any statement by Owner.com” and did not allege any
“causal connection” between Owner.com’s business practices and ChowNow’s injury. Dkt. No.
15 at 13-14. Owner.com further contends that ChowNow “does not identify a single customer or
market participant that was exposed to—let alone relied on—any of the challenged statements[.]”
Id. at 15.
“The standing requirements under California’s FAL and UCL and the federal Lanham Act
are generally the same.” Eli Lilly, 2025 WL 2721684, at *5 (citation omitted). For UCL and FAL
claims, plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify
as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of,
i.e., caused by, the unfair business practice or false advertising that is the gravamen of the
claim.” Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 322 (Cal. 2011) (emphasis in original).
District courts within the Ninth Circuit are split on the question of whether a competitor plaintiff
must plead its own reliance on a defendant’s allegedly misleading statement. Lona’s Lil Eats,
LLC v. DoorDash, Inc., No. 20-cv-06703-TSH, 2021 WL 151978, at *10 (N.D. Cal. Jan. 18,
2021). Owner.com correctly notes that the majority of district courts have required a plaintiff to
plead its own reliance. See id.; Dkt. No. 15 at 13. The minority approach does not require a
competitor plaintiff to allege its own reliance, as long as the plaintiff has alleged a sufficient
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causal connection between the challenged misconduct and the injury suffered. Lona’s Lil Eats,
2021 WL 151978, at *12 (quoting Allergan USA Inc. v. Imprimis Pharms., Inc., No. 17-cv-1551-
DOC-JDEx, 2017 WL 10526121, at *41 (C.D. Cal. Nov. 14, 2017)) (“[I]mposing a direct reliance
requirement on competitor claims would impose a ‘superficial hurdle’ on competitor
plaintiffs[.]”). The Court finds the minority approach more persuasive given the nature of
ChowNow’s allegations and the statutes’ purpose, which is “to protect both consumers and
competitors” alike. Kwikset, 51 Cal. 4th at 344.
ChowNow alleges that “Owner.com’s conduct has caused lost sales and revenue, lost
economic prospects, harm to ChowNow’s registered intellectual property, and reputational harm
to ChowNow.” Dkt. No. 1 ¶ 1. ChowNow also alleges that it has “lost sales associated with
customers who left ChowNow’s service for Owner.com because of Owner.com’s false and
misleading statements about ChowNow’s business.” Id. ¶ 191. Because ChowNow has pled
“factual allegations rather than legal conclusions” about “lost sales,” ChowNow’s allegations are
sufficient for standing purposes under the FAL and UCL statutes. See Eli Lilly, 2025 WL
2721684, at *5; Luxul Tech. Inc. v. Nectarlux, LLC, 78 F. Supp. 3d 1156, 1174 (N.D. Cal. 2015)
(allegation of “economic injury in the form of lost customers and sales revenue . . . is sufficient to
satisfy standing under the UCL”); Simpson Strong-Tie Co. Inc. v. MiTek Inc., No. 20-cv-06957-
VKD, 2021 WL 1253803, at *6-7 (N.D. Cal. Apr. 5, 2021) (allegations that defendant’s conduct
caused plaintiff to lose sales were sufficient to plead standing under UCL and FAL). The Court
finds that ChowNow has alleged monetary harm caused by Owner.com’s conduct sufficient to
demonstrate standing for its UCL and FAL claims.
D. Rule 12(b)(6): Claims 1-7
Owner.com moves to dismiss the complaint under Rule 12(b)(6) on the grounds that it fails
to state a claim for relief.
1. Claims 1 and 4: False advertising
ChowNow asserts claims for false advertising under the Lanham Act, 15 U.S.C. § 1125(a),
and the FAL, Cal. Bus. & Prof. Code § 17500, alleging that Owner.com made misleading,
deceptive, and false statements regarding ChowNow’s business, products, and services. Dkt. No.
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1 ¶¶ 198-205, 220-224. Owner.com argues that ChowNow fails to sufficiently plead that the
statements at issue are false and that ChowNow lost customers because of Owner.com’s
statements. Dkt. No. 15 at 16-19. ChowNow responds that it has adequately pled allegations that
Owner.com’s statements are false or misleading, and that the statements are material to
consumers. Dkt. No. 24 at 12-14.
A claim for false advertising under the Lanham Act has five elements: (1) a false or
misleading statement of fact by the defendant in a commercial advertisement about its own or
another’s product; (2) the statement actually deceived or has the tendency to deceive a substantial
segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing
decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the
plaintiff has been or is likely to be injured as a result of the false statement, either by direct
diversion of sales from itself to defendant or by a lessening of the goodwill associated with its
products. Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012); 15 U.S.C.
§ 1125(a)(1). Similarly, the FAL prohibits “untrue or misleading” advertising “which is known,
or which by the exercise of reasonable care should be known, to be untrue or misleading.” Cal.
Bus. & Prof. Code § 17500. Any violation of the FAL necessarily violates the UCL. Moore v.
Mars Petcare US, Inc., 966 F.3d 1007, 1016 (9th Cir. 2020). “In the Ninth Circuit, claims of
unfair competition and false advertising under [the FAL and the UCL] are substantially congruent
to claims made under the Lanham Act.” See, e.g., Scilex Pharms., Inc. v. Sanofi-Aventis U.S.
LLC, No. 21-cv-01280-JST, 2022 WL 20286688, at *9 (N.D. Cal. Feb. 24, 2022). The Court
therefore consolidates its analysis of ChowNow’s false advertising claims under federal and state
law.
ChowNow challenges the following five categories of statements as false or misleading:
(1) Capterra/G2 scores: Owner.com republished Capterra scores and G2 scores issued by
third parties on its website and represented that the scores were “current as of 2025.”
See Dkt. No. 1 ¶¶ 41-85.
(2) Comparison page statements: Owner.com’s webpage comparing Owner.com and
ChowNow states that Owner.com provides a “2-4x conversion rate on Owner websites
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vs. average” and that restaurants using Owner.com experience “+85% reorders from
guests.” Id. ¶ 87. The comparison page also states that “when Google visitors try to
order, ChowNow sends them to the ChowNow app, which isn’t good for your
website’s Google ranking.” Id. ¶ 95. In addition, it states, “Unlike BentoBox, who
adds fees for implementation, customizing your accounts, and adding new capabilities,
we’ll charge you a flat fee to access the whole platform.” Id. ¶ 98.
(3) Customer testimonials: Owner.com’s comparison page includes a section titled “Hear
from restaurant owners who switched to Owner.com,” which includes a customer
testimonial by Rahul Bhatia, the owner of Saffron Indian Kitchen. Id. ¶¶ 102-108. In
addition, Owner.com’s website contains an article titled “How Metro Pizza increased
direct online sales by $10,000/m by switching from ChowNow for Owner.” Id. ¶ 113.
The article states that “Before Owner,” Metro Pizza “could not customize their
previous ChowNow system’s look and feel to tell their story.” Id. ¶ 117. It also states
that “With Owner,” Metro Pizza can use Owner.com’s “hybrid delivery” feature which
provides “the flexibility to use a combination of their own in-house drivers and third-
party drivers.” Id. ¶ 120. The article provides a link to “Other success stories,” which
leads to another customer testimonial by Doo-Dah Diner. Id. ¶ 125.
(4) RestaurantGPT: The RestaurantGPT website provides scores for restaurants’ “online
health,” which purports to be an aggregation of three sub-scores for “Search Results,”
“Website Experience,” and “Local Listings.” Id. ¶ 131.
(5) YouTube videos: Owner.com’s YouTube channel has at least two videos that discuss
ChowNow. Id. ¶ 170. The first video, titled “Why Restaurants Are Leaving
ChowNow,” includes statements that ChowNow has “no ability to promote new menu
items,” “no loyalty system integration,” and “no website builder,” and that ChowNow
promotes its own ChowNow mobile application instead of a restaurant’s mobile
application. Id. ¶ 172. The second video, titled “How To Get A Mobile App For Your
Restaurant In 7 Days (2024),” includes statements that ChowNow “can’t promote new
menu items,” ChowNow promotes its own mobile application instead of its restaurant
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partner’s application, and ChowNow does not have a website builder. Id. ¶ 180.
ChowNow’s false advertising claims sound in fraud and must meet the heightened
pleading standard of Rule 9(b). See Peak Health Ctr. v. Dorfman, No. 19-cv-04145-VKD, 2019
WL 5893188, at *10 (N.D. Cal. Nov. 12, 2019) (applying Rule 9(b) to false advertising claim);
Corsair Gaming, Inc. v. Choice Elecs. Inc., No. 5:25-cv-00045-BLF, 2025 WL 2822691, at *5
(N.D. Cal. Oct. 3, 2025) (quoting Seoul Laser Dieboard Sys. Co., Ltd. v. Serviform, S.r.l., 957 F.
Supp. 2d 1189, 1200 (S.D. Cal. 2013)) (noting that “[d]istrict courts in the Ninth Circuit have held
that the heightened pleading standard of [Rule 9(b)] applies to false advertising claims”).
ChowNow must plead “the who, what, when, where, and how” of the fraudulent conduct. Peak
Health, 2019 WL 5893188, at *10 (quoting Vess v. Giba-Geigy Corp. USA, 317 F.3d 1097, 1106
(9th Cir. 2003)).
a. Capterra/G2 scores
With respect to ChowNow’s allegations regarding Owner.com’s statements about Capterra
and G2 scores, Owner.com argues that ChowNow fails to adequately allege that the statements
were false at the time they were published. See Dkt. No. 15 at 17-19. However, ChowNow’s
false advertising claims are premised, in part, on Owner.com’s continued publication of the
challenged statements even after they became inaccurate. See, e.g., Dkt. No. 1 ¶ 47 (ChowNow
alleging that “[r]epresenting false Capterra Scores as being ‘current as of 2025’ is also deceptive,
misleading, and false.”); Dkt. No. 24 at 12 n.6.
Construing the allegations of the complaint in ChowNow’s favor, the Court finds that
ChowNow adequately pleads claims for false advertising with respect to Owner.com’s statements
regarding the parties’ Capterra and G2 scores. ChowNow alleges that Owner.com (who)
published statements regarding Owner.com’s and ChowNow’s Capterra and G2 scores (what) on
Owner.com’s website (where) as of June 2025 (when). ChowNow claims the statements were
false because as of June 2025, ChowNow’s and Owner.com’s Capterra and G2 scores differed
from the scores on Owner.com’s website, despite Owner.com’s statement that the scores were
“current as of 2025” (how). Specifically, ChowNow alleges that Owner.com’s website states that
Owner.com’s Capterra score is 4.9 and ChowNow’s Capterra score is 4.0 “as of 2025.” Dkt. No.
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1 ¶ 43. ChowNow states that as of June 2025, Owner.com’s and ChowNow’s Capterra scores
were the same—4.6. Id. ¶¶ 45-46. In addition, ChowNow alleges Owner.com represented that its
G2 score is 4.9 and ChowNow’s G2 score is 4.0. Id. ¶ 74. ChowNow contends that as of June
2025, its G2 score was 4.6. Id. ¶ 75. ChowNow also plausibly alleges that Capterra and G2
scores are material to customers and that Owner.com’s statements have deceived ChowNow’s
customers and caused lost sales. See id. ¶¶ 48, 70, 85, 201.
Accordingly, the Court concludes that ChowNow adequately states claims for false
advertising based on Owner.com’s statements regarding the parties’ Capterra and G2 scores.
b. Customer testimonials
ChowNow challenges Owner.com’s use of customer testimonials by Saffron Indian
Kitchen, Metro Pizza, and Doo-Dah Diner on Owner.com’s website. Id. ¶¶ 102-129. ChowNow
does not plausibly allege that Owner.com’s statements regarding Saffron Indian Kitchen and Doo-
Dah Diner are false or misleading. ChowNow does not allege that either testimonial mentions
ChowNow or that any statements in those testimonials are false or misleading. To the extent
ChowNow claims that merely placing these testimonials on Owner.com’s comparison page or on
its “case studies” page is “misleading,” see id. ¶¶ 102-109, 125-127, it fails to state a claim for
false advertising.
However, ChowNow sufficiently pleads claims for false advertising with respect to
Owner.com’s Metro Pizza testimonial. The Metro Pizza testimonial clearly implicates ChowNow
as it is titled, “How Metro Pizza increased direct online sales by $10,000/m by switching from
ChowNow for Owner.” Id. ¶ 113. ChowNow adequately alleges facts from which it can be
inferred that statements in the testimonial are false. Id. ¶¶ 116-123. For example, the testimonial
states that “[b]efore Owner,” Metro Pizza “could not customize their previous ChowNow system’s
look and feel to tell their story.” Id. ¶ 117. ChowNow alleges that statement is false because
ChowNow does offer customization options. Id. ¶ 118. ChowNow also alleges that statements
indicating that specific restaurants have switched from ChowNow to Owner.com are “of direct
importance to restaurants seeking a digital solution partner” and have caused ChowNow to lose
customers. Id. ¶¶ 32, 33, 201.
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Accordingly, the Court concludes that ChowNow adequately states claims for false
advertising based on the Metro Pizza testimonial on Owner.com’s website, but not based on the
Saffron Indian Kitchen and Doo-Dah Diner testimonials.
c. YouTube videos
ChowNow alleges that the statements in the two YouTube videos in dispute are false
because contrary to Owner.com’s statements, ChowNow gives restaurants the ability to promote
new menu items, has a loyalty system, offers a custom website builder, and does not self-promote
its mobile application on restaurant partners’ mobile applications. See Dkt. No. 1 ¶¶ 174-179,
183-184. It is not clear from the complaint when the videos were posted, but apparently they were
still accessible as of June 29, 2025. See Dkt. No. 2 ¶¶ 23, 24. While ChowNow sufficiently
alleges facts from which it can be inferred that the statements in the YouTube videos are false (at
least as of June 2025), it fails to allege that any customers likely encountered these videos, or
would have relied on the statements in the videos if they had encountered them.
Accordingly, the Court concludes that ChowNow fails to state claims for false advertising
with respect to the challenged statements in Owner.com’s YouTube videos.
d. Comparison page and RestaurantGPT website
ChowNow challenges certain statements on Owner.com’s comparison page and its
RestaurantGPT website. Dkt. No. 1 ¶¶ 87, 95, 98, 131. However, while ChowNow adequately
identifies the statements at issue, it fails to plead that they are actually false, identify what is false
about them, and plausibly allege that the statements likely influenced customers’ purchasing
decisions. For example, ChowNow challenges the statements that Owner.com provides a “2-4x
conversion rate on Owner websites vs. average” and that restaurants using Owner.com experience
“+85% reorders from guests” on the grounds that these statements lack “evidentiary support or
substantiation.” Id. ¶¶ 89-90. Similarly, ChowNow contends that statements on the
RestaurantGPT website are false because Owner.com “relies on untransparent methodologies and
algorithms.” Id. ¶ 138. ChowNow’s allegations concerning these statements are conclusory; it
does not identify anything false about any of these statements or allege that they are material.
Rather, ChowNow’s principal objection appears to be that it cannot discern the basis for
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Owner.com’s statements. See id. ¶¶ 90, 138. That does not mean the statements are false, nor
does ChowNow plead that they are.
ChowNow also alleges that Owner.com makes a statement regarding BentoBox (“Unlike
BentoBox, who adds fees for implementation, customizing your accounts, and adding new
capabilities, we’ll charge you a flat fee to access the whole platform.”) that is misleading. Id. ¶¶
98-100. As with the Saffron Kitchen testimonial, ChowNow objects to this statement as
“misleading and confusing” because it is on the comparison page. Id. However, ChowNow does
not allege that the statement itself is false, or that any customers saw this statement, or are likely to
have relied upon it or found it material.
Finally, ChowNow alleges that the statement that “when Google visitors try to order,
ChowNow sends them to the ChowNow app, which isn’t good for your website’s Google ranking”
is false because “directing consumers to an external ordering platform does not impact Google
rankings.” Id. ¶ 96. While ChowNow adequately alleges why the statement is false or
misleading, it does not allege that any customers saw this statement, or are likely to have relied
upon it or found it material.
Accordingly, the Court concludes that ChowNow fails to state claims for false advertising
with respect to the challenged statements on Owner.com’s comparison page and its
RestaurantGPT website.
2. Claims 1 and 2: Trademark infringement
ChowNow also asserts claims for trademark infringement under 15 U.S.C. § 1114(a) and
15 U.S.C. § 1125(a) of the Lanham Act. Dkt. No. 1 ¶¶ 198-215. It is not clear whether ChowNow
means to assert a claim for trademark infringement under § 1125(a)(1)(A) or § 1125(a)(1)(B).
Compare id. ¶ 202 with Dkt. No. 24 at 15. This discrepancy must be clarified if ChowNow
chooses to file an amended complaint. In this order, the Court addresses only whether ChowNow
states a claim for relief under § 1114(a).
To state a claim for trademark infringement under 15 U.S.C. § 1114(a), a plaintiff must
plausibly allege that (1) it has a valid, protectable trademark; (2) the defendant used the mark in
connection with goods or services; and (3) that use is likely to cause confusion, mistake, or
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deception. LegalForce RAPC Worldwide, PC v. LegalForce, Inc., 124 F.4th 1122, 1125 (9th Cir.
2024); Applied Info. Scis. Corp. v. eBay, Inc., 511 F.3d 966, 969 (9th Cir. 2007); Reno Air Racing
Ass’n, Inc. v. McCord, 452 F.3d 1126, 1134 (9th Cir. 2006). ChowNow claims that Owner.com
uses the CHOWNOW mark in comparative advertising without authorization. See, e.g., Dkt. No.
1 ¶¶ 31, 194. Owner.com responds that ChowNow’s trademark infringement claim fails because
“there is no allegation that consumers were confused as to the ‘source of the products’ nor can
there be.” Dkt. No. 15 at 15 (quoting Brookfield Commc’ns, Inc. v. West Coast Ent. Corp., 174
F.3d 1036, 1053 (9th Cir. 1999)). Owner.com asserts that, in any event, ChowNow’s claim fails
as a matter of law because Owner.com’s uses of ChowNow’s mark qualify as nominative fair use.
Id. at 15-16.
The Court agrees with Owner.com that the complaint fails to plausibly allege any use of
the CHOWNOW mark likely to cause confusion or mistake or to deceive any customer or
prospective customer regarding the source of the goods or services at issue. Rather, ChowNow’s
trademark infringement claim merely repackages what are essentially false advertising claims. To
the extent ChowNow complains that Owner.com infringes the CHOWNOW mark merely because
it uses the word “ChowNow” in comparative advertising, such a claim cannot succeed. See New
Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302, 306 (9th Cir. 1992) (“[I]t is often
virtually impossible to refer to a particular product for purposes of comparison, criticism, point of
reference or any other such purpose without using the mark.”). Competitors may use a rival’s
trademark in advertising, so long as that use is not false or misleading. Id. at 307. Such use “lies
outside the strictures of trademark law: Because it does not implicate the source-identification
function that is the purpose of trademark, it does not constitute unfair competition; such use is fair
because it does not imply sponsorship or endorsement by the trademark holder.” Id. at 308.
Here, ChowNow’s own allegations indicate that Owner.com used the term “ChowNow” to
convey information comparing the services provided by the parties and not to suggest to
consumers that Owner.com was part of ChowNow or that its services are sponsored or authorized
by ChowNow. ChowNow does not plausibly allege that such use of ChowNow’s mark infringes.
See Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1154 (9th Cir.
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2011) (“[T]he linchpin of trademark infringement is consumer confusion . . . .”); Lerner & Rowe
PC v. Brown Engstrand & Shely LLC, 119 F.4th 711, 718 (9th Cir. 2024) (actionable trademark
infringement applies “only to ‘misleading and deceptive’ uses of a mark, not to ‘legitimate
comparative and contextual advertising’”), cert. denied, 145 S. Ct. 2732 (2025).
Accordingly, the complaint fails to state a claim for trademark infringement under § 1114
of the Lanham Act.
3. Claim 3: Unfair competition
ChowNow asserts a claim for violation of California’s UCL, Bus. & Prof. Code
§ 17200. Dkt. No. 1 ¶¶ 216-219. Section 17200 prohibits “any unlawful, unfair or fraudulent
business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof.
Code § 17200. The Court considers whether ChowNow states a claim that Owner.com engaged in
an “unlawful” or “unfair” business act or practice.2
a. “Unlawful” prong
Section 17200’s unlawful prong “borrows violations of other laws and treats them as
unlawful practices that the unfair competition law makes independently actionable.” Davis v.
HSBC Bank Nev., N.A., 691 F.3d 1152, 1168 (9th Cir. 2012) (citations omitted). Thus, “to state a
claim under the unlawful prong of the UCL, a plaintiff must sufficiently plead a predicate
violation.” MacDonald v. Ford Motor Co., 37 F. Supp. 3d. 1087, 1097 (N.D. Cal. 2014).
ChowNow asserts that Owner.com engaged in false advertising and trademark
infringement in violation of the Lanham Act. As explained above, to the extent ChowNow states
a claim for false advertising, it likewise states a claim that Owner.com engaged in an “unlawful”
business practice in violation of the UCL.
b. “Unfair” prong
The “unfair” prong of the UCL “prohibit[s] ‘not only advertising which is false, but also
2 It is not entirely clear from the complaint on which prongs of the UCL ChowNow bases its
unfair competition claim. Owner.com moves to dismiss with respect to all three prongs (unlawful,
unfair, and fraudulent). Compare Dkt. No. 15 at 19-21 with Dkt. No. 24 at 16-18. At the
December 16, 2025 hearing, ChowNow’s counsel represented that ChowNow’s unfair competition
claim is limited to the “unlawful” and “unfair” prongs of the UCL.
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advertising which[,] although is true, is either actually misleading or which has a capacity,
likelihood or tendency to deceive or confuse the public.’” Brady v. Bayer Corp., 26 Cal. App. 5th
1156, 1173 (Cal. Ct. App. 2018) (citation omitted). For business competitor UCL claims, the
alleged unfairness must “be tethered to some legislatively declared policy or proof of some actual
or threatened impact on competition.” Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co.,
20 Cal. 4th 163, 186-87 (Cal. 1999). Additionally, conduct is “unfair” under the UCL if it
“threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those
laws because its effects are comparable to or the same as a violation of the law, or otherwise
significantly threatens or harms competition.” Id. at 187; see also Snapkeys, Ltd. v. Google LLC,
No. 19-cv-02658-LHK, 2020 WL 6381354, at *3 (N.D. Cal. Oct. 30, 2020) (same). “Injury to a
competitor is not equivalent to injury to competition,” Cel-Tech Commc’ns, 20 Cal. 4th at 186,
and “[a] plaintiff must allege harm to the competitive market ‘as a whole,’ not just to a
competitor,” Snapkeys, 2020 WL 6381354 at *3 (quoting Marsh v. Anesthesia Servs. Med. Grp.,
Inc., 200 Cal. App. 4th 480, 502 (Cal. Ct. App. 2011)).
While ChowNow alleges injury to itself, it has not alleged any facts plausibly showing any
harm to competition in the relevant market. The complaint contains only conclusory allegations
that Owner.com’s conduct is “unfair and therefore a violation of these provisions,” and that
“Owner.com’s disruption and interference” with ChowNow’s relationships with customers
“constitutes unfair competition.” Dkt. No. 1 ¶¶ 217, 242. Such conclusory allegations are
insufficient to support a claim for unfair business competitor practices under the UCL. See Levitt
v. Yelp!, Inc., 765 F.3d 1123, 1136-37 (9th Cir. 2014) (concluding that plaintiffs’ “general
allegation” that defendant “harms competition by favoring businesses that submit to Yelp’s
manipulative conduct and purchase advertising to the detriment of competing businesses that
decline to purchase advertising” did “not satisfy Cel–Tech’s requirement that the effect of Yelp’s
conduct amounts to a violation of antitrust laws ‘or otherwise significantly threatens or harms
competition.’”).
ChowNow fails to state a UCL claim under the “unfair” prong of the statute.
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4. Claims 5, 6, and 7: Trade libel, intentional interference with contractual
relations, intentional interference with prospective economic advantage
ChowNow asserts claims for trade libel, intentional interference with contractual relations,
and intentional interference with prospective economic advantage. Dkt. No. 1 ¶¶ 225-244.
Owner.com argues that ChowNow’s allegations are conclusory and do not identify specific
customers or transactions lost, nor is there any allegation that Owner.com knew of ChowNow’s
contracts with customers. Dkt. No. 15 at 22-26.
a. Trade libel
ChowNow’s trade libel claim is based on Owner.com’s “false statements about
ChowNow’s business, products and services . . . through its commercial advertising and
promotion.” Dkt. No. 1 ¶ 226.
“Trade libel is an intentional disparagement of the quality of services or product of a
business that results in pecuniary damage to the plaintiff.” J-M Mfg. Co. v. Phillips & Cohen LLP,
247 Cal. App. 4th 87, 97 (Cal. Ct. App. 2016). “A trade libel claim requires: (1) a publication, (2)
which induces others not to deal with plaintiff, and (3) special damages.” AlterG, Inc. v. Boost
Treadmills LLC, 388 F. Supp. 3d 1133, 1154 (N.D. Cal. 2019) (quoting Aetna Cas. & Sur. Co. v.
Centennial Ins. Co., 838 F.2d 346, 351 (9th Cir. 1988)); see also Leonardini v. Shell Oil Co., 216
Cal. App. 3d 547, 572 (Cal. Ct. App. 1989) (“[A] cause of action for damages for trade libel
requires pleading and proof of special damages in the form of pecuniary loss.”) (citation omitted).
Moreover, a plaintiff must allege: (1) who made the statements, (2) to whom the statements were
made, (3) the time and place of publication, and (4) the substance of the statements. AlterG, 388
F. Supp. 3d at 1154. The plaintiff must “identify particular customers and transactions of which it
was deprived as a result of the libel.” Mann v. Quality Old Time Serv., Inc., 120 Cal. App. 4th 90,
109 (Cal. Ct. App. 2004).
Owner.com argues that ChowNow’s claim relies on “generalized allegations” and that
ChowNow fails to identify particular customers and transactions of which it was deprived because
of the alleged trade libel. Dkt. No. 15 at 22-23. The Court agrees. ChowNow alleges that
“current restaurant partners have been induced to switch to Owner.com’s services, and prospective
restaurant partners have been induced not to do business with ChowNow.” Dkt. No. 1 ¶ 230.
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While ChowNow identifies one former customer by name, Metro Pizza, its allegations are
otherwise conclusory. A trade libel plaintiff must allege and eventually “prove that the statement
played ‘a material and substantial part in inducing others not to deal with [the plaintiff].’” Piping
Rock Partners, Inc. v. David Lerner Assocs., Inc., 946 F. Supp. 2d 957, 981 (N.D. Cal. 2013)
(citation omitted), aff’d, 609 F. App’x 497 (9th Cir. 2015). ChowNow’s allegations merely
conclude that it lost current and prospective customers “[a]s a direct result of Owner.com’s
publication of these false statements in its commercial advertising and promotions.” Dkt. No. 1
¶ 230. As to Metro Pizza, ChowNow states in conclusory manner that “Owner.com knew of or
should have known of the contractual and business relationship between ChowNow and Metro
Pizza” and that “Metro Pizza’s switch to Owner.com was based on Owner.com’s deceptive
advertising regarding ChowNow.” Id. ¶¶ 128, 129. ChowNow fails to allege any facts that
plausibly suggest that Metro Pizza or other customers were induced not to deal with ChowNow
because of Owner.com’s false statements.
The Court finds that ChowNow fails to state a claim for trade libel.
b. Intentional interference with contractual relations
In California, a claim of intentional interference with contractual relations requires “(1) a
valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3)
defendant’s intentional acts designed to induce a breach or disruption of the contractual
relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting
damage.” hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1191 (9th Cir. 2022) (quoting Pac.
Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (Cal. 1990)).
Again, ChowNow only vaguely and generally refers to contracts with customers. See Dkt.
No. 1 ¶ 234 (“ChowNow has developed and has maintained contractual relationships with
customers consisting of, inter alia, restaurant owners.”). In its opposition brief, ChowNow
contends that it sufficiently identified at least one customer, Metro Pizza, as a customer with
whom ChowNow had a contract with which Owner.com intentionally interfered. Dkt. No. 24 at
19-20. However, the complaint merely alleges that Owner.com “knew or should have known of
the contractual and business relationship between ChowNow and Metro Pizza,” Dkt. No. 1 ¶ 128,
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and does not allege facts plausibly supporting the existence of a valid contract between ChowNow
and Metro Pizza or the other required elements, including Owner.com’s knowledge of the
contract.
In addition, ChowNow does not plausibly allege that Owner.com uses the RestaurantGPT
website to target ChowNow’s customers. See id. ¶ 135 (“Upon information and belief,
Owner.com is capable of[] using the RestaurantGPT Tool, identifying existing contractual
relationships and business relationships between restaurants and their existing digital software
platform providers, such as ChowNow.”). Its existing allegations are wholly conclusory. See Go
Daddy Operating Co., LLC v. Ghaznavi, No. 17-cv-06545-PJH, 2018 WL 1091257, at *10 (N.D.
Cal. Feb. 28, 2018) (finding allegations that defendants queried a public database were insufficient
to plead defendants’ knowledge of plaintiff’s customer relationships).
The Court finds that ChowNow fails to plead a claim for intentional interference with
contractual relations.
c. Intentional interference with prospective economic advantage
Intentional interference with prospective economic advantage requires “essentially the
same elements as a claim for intentional interference with contractual relations, but additionally
‘requires proof that the defendant not only interfered with the plaintiff’s expectancy, but engaged
in conduct that was wrongful by some legal measure other than the fact of interference itself.’”
Stereoscope, LLC v. U.S. Bank Nat’l Ass’n, 675 F. App’x 725, 726 (9th Cir. 2017) (internal
quotation marks and citation omitted). A plaintiff claiming interference with prospective
economic advantage must plead a business relationship with a specific third party containing “the
probability of future economic benefit to the plaintiff.” Piping Rock, 946 F. Supp. 2d at
980 (quoting Youst v. Longo, 43 Cal. 3d 64, 71 (Cal. 1987)) (internal quotation marks
omitted); see also AlterG, 388 F. Supp. 3d at 1151.
ChowNow’s claim for intentional interference with prospective economic advantage fails
for similar reasons. ChowNow fails to identify an economic relationship with a specific customer.
See RingCentral, Inc. v. Nextiva, Inc., No. 19-cv-02626-NC, 2020 WL 4039322, at *5 (N.D. Cal.
July 17, 2020) (“General allegations regarding prospective or future customers are insufficient
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because they fail to adequately suggest that those relationships contain a probability of future
economic benefits.”). In addition, the complaint does not indicate that Owner.com’s conduct “was
wrongful by some legal measure other than the fact of interference itself.” As the Ninth Circuit
noted, “So long as the plaintiff’s contractual relations are merely contemplated or potential, it is
considered to be in the interest of the public that any competitor should be free to divert them to
himself by all fair and reasonable means . . . In short, it is no tort to beat a business rival to
prospective customers.” New Kids on the Block, 971 F.2d at 310 (affirming dismissal of
intentional interference with prospective economic advantage and noting that plaintiffs “ignore the
maxim that all’s fair in love, war and the free market”).
The Court concludes that ChowNow fails to sufficiently plead a claim for intentional
interference with prospective economic advantage.
IV. LEAVE TO AMEND
Rule 15(a) provides that leave to amend “should be freely given when justice so requires,”
and “the court must remain guided by the underlying purpose of Rule 15 . . . to facilitate decision
on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127
(9th Cir. 2000) (en banc) (quotations and citations omitted). “The decision of whether to grant
leave to amend nevertheless remains within the discretion of the district court,” which may deny
leave to amend if allowing amendment would unduly prejudice the opposing party, cause undue
delay, or be futile, or if the party seeking amendment has acted in bad faith. Leadsinger, Inc. v.
BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)).
Although the Court harbors some doubt that ChowNow can amend its complaint to state a
plausible claim for trademark infringement, the Court anticipates that ChowNow may be able to
amend the complaint to address some or all of the deficiencies described above. Therefore, the
Court gives ChowNow leave to amend its complaint as to all existing claims.
V. CONCLUSION
For the reasons discussed above, the Court denies Owner.com’s motion to dismiss for lack
of standing, and grants in part and denies in part its motion to dismiss for failure to state a claim,
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as follows:
(1) Claim 1 (false advertising) is dismissed as to the Saffron Indian Kitchen and Doo-Dah
Diner testimonials; statements in the YouTube videos; statements on the comparison
page; and statements on the RestaurantGPT website, with leave to amend. The motion
is denied as to the statements regarding Capterra and G2 scores and the Metro Pizza
testimonial.
(2) Claim 1 (trademark infringement) is dismissed, with leave to amend.
(3) Claim 2 (trademark infringement) is dismissed, with leave to amend.
(4) Claim 3 (unfair competition) is dismissed as to the “unfair” prong of the UCL, with
leave to amend. The motion is denied as to the “unlawful” prong of the UCL.
(5) Claim 4 (false advertising) is dismissed as to the Saffron Indian Kitchen and Doo-Dah
Diner testimonials; statements in the YouTube videos; statements on the comparison
page; and statements on the RestaurantGPT website, with leave to amend. The motion
is denied as to the statements regarding Capterra and G2 scores and the Metro Pizza
testimonial.
(6) Claim 5 (trade libel) is dismissed, with leave to amend.
(7) Claim 6 (intentional interference with contractual relations) is dismissed, with leave to
amend.
(8) Claim 7 (intentional interference with prospective economic advantage) is dismissed,
with leave to amend.
ChowNow may file an amended complaint no later than February 3, 2026.
IT IS SO ORDERED.
Dated: January 16, 2026
Virginia K. DeMarchi
United States Magistrate Judge
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