Antitrust Law Daily Wrap Up, ADVERTISING—9th Cir.: Misstatements about a biodegradable cooler's introduction to the market did not violate Lanham Act, (May 7, 2026)

By Kenneth H. Ryesky, M.B.A., J.D.

Appeals court was "guided by a line of cases tracing the fuzzy boundaries between the laws of unfair competition and intellectual property."

The Ninth Circuit has dismissal of Lanham Act claims filed by cooler manufacturer Vericool World, LLC against competitor Igloo Products Corp. Vericool had alleged that Igloo falsely touted its “Recool” biodegradable cooler as the first of its kind available to the public. A California district court concluded that the alleged misstatements did not go to the “nature, characteristics, or qualities” of the cooler as required for recovery under the Lanham Act. The appellate court agreed that such a claim was not cognizable under the Lanham Act. The third judge on the panel filed a dissenting opinion that would have reversed the summary judgment grant and remanded the case to the district court for further determination of the elements of the false advertising claim (Vericool World, LLC v. Igloo Products Corp., No. 24-192 (9th Cir. May 6, 2026)).

Background. "Styrofoam®" is a trademarked name that has become genericized in everyday parlance to refer to the aerated polystyrene resin that has diverse practical uses as a lightweight material having thermo-insulative properties. One such application for aerated polystyrene resin is for containers called "coolers," in which cold foods can be stored and transported without spoilage from excessive exposure to heat.

But polystyrene is not readily biodegradable, and presents many other environmental concerns. Vericool World LLC and its predecessor (collectively, Vericool) and Igloo Products Corp. (Igloo) each manufactured and marketed biodegradable alternatives to coolers made of aerated polystyrene resin; their coolers each were made of molded plant pulp. A dispute arose between Vericool and Igloo, in which Vericool took issue with Igloo touting its molded plant pulp cooler as "the world’s first eco sensitive cooler, made from 100% biodegradable materials," and insisted that Vericool's product had been marketed to the public before Igloo's product was.

Vericool sued Igloo in federal district court, alleging false advertising under the Lanham Act and unfair competition under the California False Advertising Law. The federal district court in Oakland, California granted Igloo's motion for summary judgment on Vericool's Lanham Act claim, and also on the claim under the California statute (which was concededly derivative from the Lanham Act claim). Vericool appealed the district court's ruling to the Ninth Circuit.

Lanham Act. The appellate court affirmed the district court's summary judgment grant to Igloo on the Lanham Act claim. The relevant section of the Lanham Act claim asserted here addresses misrepresentation of "the nature, characteristics, qualities, or geographic origin of" the coolers. The circuit court here held that the date a good or service first enters the market does not come under the rubric of the "nature, characteristics, qualities, or geographic origin" language of the Lanham Act.

Vericool claimed that Igloo's promotion of its own cooler deprived Vericool of "the cachet that comes from producing a pioneering product." While the date of a product's introduction into the market can be a critical issue under intellectual property law, it has no relevance under advertising laws such as the Lanham Act. "The textual terms in the Lanham Act refer to 'the tangible good itself' and not 'the author of any idea, concept, or communication embodied in a good.'" Unfair competition laws such as California's are not intended to protect the goodwill of the marketers of a product, they are enacted to protect the consumers of the goods.

Biodegradability of Igloo's cooler. The circuit court denied Vericool's claim regarding the biodegradability of Igloo's competing product. This argument was raised for the first time when the case was on appeal before the circuit court, and could not be considered. Had the issue been raised in the district court below, it may well have been actionable under the Lanham Act as an attribute related to a characteristic of a tangible good. Here, the circuit court did not allow Vericool to "upset an adverse summary judgment by raising an issue of fact on appeal that was not plainly disclosed as a genuine issue before the trial court."

The Case is No. 24-192.

Judge: Nelson, R.

Attorneys: Felton Thomas Newell (Newell Law Group, PC) for Vericool World, LLC. Jordan Raphael (Byron Raphael, LLP) for IGLOO Products Corp.

Companies: Vericool World, LLC; IGLOO Products Corp.

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