Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: Tag-based shopping app maker unable to state Sherman Act claims against Meta, (Aug 31, 2026)

By Justin Marcus Smith, J.D.

There was no basis for tolling untimely claims under the continuing violation doctrine because Meta’s enforcement of an internal trademark policy decision was automatic, not a series of affirmative acts.

Ollywan Limited, holding itself out as the developer of a tag-based shopping application for social networking platforms, asserted untimely claims for damages and injunctive relief against Facebook parent Meta Platforms, Inc., held the federal district court in San Jose, California. The continuing violation doctrine could not save Ollywan’s claims because Meta’s enforcement of an internal trademark policy decision was automatic, not a series of affirmative acts. The doctrine of laches barred injunctive relief where the court said it could draw a clear inference of economic prejudice from the complaint. A case Ollywan cited in support of viewing of the alleged conduct wholistically, as part of one continuing violation of the Sherman Act, involved distinguishable facts. Government action tolling did not apply because a 2015 FTC action did not bear any logical nexus. As for the sufficiency of pleading apart from the issue of untimeliness, the court agreed with Meta that the complaint did not plausibly allege conduct that harmed competition. Tying allegations did not allege predatory conduct. Allegations of antitrust injury were “conclusory.” Allegations of monopoly power or a dangerous probability of achieving monopoly power in the relevant market for tag-based social network shopping were deficient. There was no way to resolve disagreements about the relevant market without a factual record. The California unfair competition claim failed on the unfair and unlawful prongs due to the underlying failure of the Sherman Act claims. The court dismissed the claims for damages with prejudice, but it granted Ollywan leave to amend with respect to seeking injunctive relief (Ollywan Ltd. v. Meta Platforms, Inc., No. 5:25-cv-08215-VKD (N.D. Cal. Aug. 28, 2026)).

Background. Ollywan Limited, a U.K. registered company, accused Meta of (1) copying Ollywan’s business plan to launch Instagram Shopping (copying allegations); (2) tying Instagram Shopping to Instagram by offering the shopping feature within Instagram (tying allegations); and (3) requiring Ollywan to use an application name other than its “Winstag” tag-based shopping application name in the Facebook Developer Console (suppression allegations).

Ollywan brought three claims against Meta: (1) violation of Section 2 of the Sherman Act for acquiring and maintaining a monopoly in the market for tag-based shopping on social network platforms; (2) violation of Section 2 of the Sherman Act for attempting to monopolize the market for tag-based shopping on social network platforms; and (3) violation of the California Unfair Competition Law (UCL).

Meta moved to dismiss on the basis that the Ollywan claims were time-barred and that the complaint otherwise failed to state a claim for relief. Ollywan opposed and filed a notice of supplemental authority.

Judicial notice. The court determined it could properly take judicial notice of three documents Meta introduced: (1) U.S. Patent Application No. 13/829,117; (2) an article titled “Pinterest introduces ‘buyable pins’ allowing direct product purchase,” published by The Guardian on June 3, 2015; and (3) a copy of the “About” page on the Winstag website. The documents appeared to be matters of public record not subject to reasonable dispute. Ollywan did not oppose Meta’s request. However, the court did not take judicial notice of any disputed factual content of the documents.

Limitations period. Ollywan did not dispute that the challenged conduct happened more than four years before it filed its complaint on September 26, 2025. Without equitable tolling, its damages claims for Sherman Act violations were time-barred.

Ollywan responded its claims were all timely because it was entitled to tolling under the continuing violation doctrine and Section 5(i) of the Clayton Act, 15 U.S.C. § 16(i). Ollywan also argued Meta’s assertion of the doctrine of laches in connection with injunctive relief could not be resolved on the pleadings, that it filed its suit promptly, and that it did not prejudice Meta with the timing of the action.

No tolling. The court held that Meta’s alleged suppression of Ollywan’s trademark was not a continuing violation that could support tolling of the limitations period. The court agreed with Meta that the relevant act with respect to tolling occurred in May 2018 when Meta decided to restrict the use of the name “Winstag” in the Facebook Developer Console, due to a purported Meta trademark concern that the “Winstag” name was too similar to “Instagram.” Ollywan called Meta’s enforcement of the internal trademark policy decision pretextual, but the court noted it was automatic, not a series of affirmative acts. More to the point, the court found Meta did not re-review its trademark enforcement decision each time a user attempted to download the Winstag application.

Ollywan relied on a 2022 Apple case to argue that Meta’s trademark decision and each subsequent OAuth Facebook log-in authentication alert that “W1nstag wants access to your data” were new and independent acts. See SaurikIT, LLC v. Apple Inc., No. 20-cv-08733-YGR, 2022 WL 1768845, at *2-3 (N.D. Cal. May 26, 2022)). However, the court distinguished that Ollywan, unlike the SaurikIT plaintiff, did not plausibly allege that Meta’s conduct “escalated” or was so “aggressive and pervasive” that Meta made it impossible for Ollywan to continue operating its business.

The court noted here that the Ollywan complaint itself acknowledged that the Facebook Developer Console automatically enforced the policy of referring to “Winstag” as “W1nstag” instead. The court cited multiple other cases for its holding that passive adherence to a decision to restrict the use of “Winstag” did not constitute new and independent acts.

Ollywan did not allege that it ever challenged Meta’s trademark enforcement decision. Instead, Ollywan said it self-mitigated by changing its application name to “W1nstag” to comply with Meta’s policy decision. After 2018, Ollywan did not give Meta any reason to revisit that decision.

Ollywan argued next that the court should consider all the conduct alleged as part of one continuing violation of the Sherman Act. Ollywan relied here on Teva Pharms. USA, Inc. v. Corcept Therapeutics, Inc., No. 24-cv-03567-NW, 2025 WL 2637507, at *8 (N.D. Cal. Sept. 12, 2025)). However, the court said the instant circumstances were distinguishable because (1) Meta’s alleged suppression of “Winstag” was not a continuing violation; (2) Ollywan alleged antitrust acts that appeared “entirely distinct and unrelated to each other”; and (3) the Teva court did not find a case that explicitly considered the intersection of the continuing violation doctrine and the existence of multiple theories of liability. The court found Teva neither compelled nor supported a different conclusion about application of the continuing violation doctrine.

In addition, Ollywan failed to identify specific dates or details about alleged serial API (application programming interface) denials that would allow the court to evaluate any conduct that could justify applying the continuing violation doctrine.

Next, Ollywan cited government action tolling of tying claims under the Section 5(i) of the Sherman Act, 15 U.S.C. § 16(i), based on the December 2020 filing date of an FTC action. However, (1) again, Ollywan did not plausibly allege that the tying conduct was a continuing violation; and (2) even if Ollywan could invoke Sherman Act Section 5(i) tolling, 15 U.S.C. § 16(i), based on Meta’s trademark enforcement activity, Ollywan did not show that its claims had any logical nexus with the FTC suit. There had to be some real relation between the two suits, but Ollywan did not present a comparison. Any connection was “highly attenuated” at best.

The court noted here that Ollywan’s complaint focused on Meta’s launch of the Instagram Shopping feature on Instagram, but that happened years after Meta’s acquisitions of Instagram and WhatsApp, and on Meta’s trademark enforcement efforts with respect to “Winstag,” which also occurred years after those acquisitions. Section 5(i) tolling could not save its tying claims. No tolling theory applied to the facts as alleged. The court ruled that Ollywan’s claims were time-barred.

Laches. Absent tolling, the court also found that laches barred the Ollywan Sherman Act and UCL claims for injunctive relief to the extent Ollywan sought an injunction requiring Meta to allow Winstag and other third-party applications to integrate with Instagram. The court said it could draw a clear inference of economic prejudice from the facts alleged in the complaint. According to Ollywan, Meta launched Instagram shopping in November 2016, nine years earlier, and had developed “separate” and “specialized” technical and customer service infrastructure to support Instagram Shopping. In addition, as Ollywan acknowledged, Instagram was not designed to support integration of third-party applications.

Anticompetitive conduct. The court held that Ollywan did not plausibly allege anticompetitive conduct under Section 2 of the Sherman Act or the UCL. Meta challenged the Ollywan claims on four grounds: (1) failure to allege exclusionary conduct; (2) failure to allege a cognizable antitrust injury from the challenged conduct; (3) implausibility of proposed tag-based shopping on social network platforms; (4) failure to adequately allege that Meta had market power in the relevant market for tag-based shopping on social networking platforms.

The court agreed with Meta that the complaint did not plausibly allege conduct that harmed competition. With respect to copying, Meta persuaded the court that no copying occurred in view of its own patent application. The application pre-dated an alleged November 2015 meeting between the companies by two years and the public announcement by other firms of similar tag-based shopping functions. In any event, mere copying is not necessarily anticompetitive.

With respect to the tying allegations, the complaint did not allege any predatory conduct. The antitrust laws did not prohibit Meta from enforcing its trademark rights, nor did they require Meta to offer the use of its Facebook Developer Console to Ollywan on Ollywan’s preferred terms.

Antitrust injury. The court found Ollywan’s allegations as to its own injury and injury to competition in general were “conclusory.” Meta argued the Ollywan allegations that Meta conduct caused injury were “speculative” because Ollywan did not plead that, but-for Meta conduct, Ollywan would have had success with Winstag. Meta also argued Ollywan did not specify injury flowing from conduct the antitrust laws were meant to prevent. Ollywan reiterated illegal tying and its OAuth log-in “sabotage.” Ollywan further argued its user registration completions dropped significantly after Meta suppressed the use of Winstag on the Facebook Developer Console and Meta thereby obtained supracompetitive 5-7% commission rates which it passed through to consumers in the form of higher product prices while eliminating consumer choice and suppressing innovation.

The court found the complaint only alleged injury to Ollywan itself. Accordingly, the court held the complaint failed to allege plausible antitrust injury.

Relevant market. Ollywan alleged tag-based shopping on social network platforms was the relevant market, and Meta argued it was “artificially narrow and implausibly excluded reasonable substitutes[,]” but the court found it could not resolve such issues at the pleading stage.

Monopoly power. Ollywan’s allegations were not enough under either the direct or indirect approach to show Meta had monopoly power or a dangerous probability of achieving monopoly power in the relevant market. Ollywan merely stated that Instagram Shopping had the “dominant share” of tag-based shopping on social network platforms enabling extraction of supracompetitive profits.

UCL claim. The court held the Ollywan UCL claim failed on the “unlawful” prong coextensive with the underlying failure to allege a violation of the Sherman Act. The court already explained that Ollywan failed to allege plausible injury to competition. Accordingly, its UCL “unfair” prong claim failed as well.

Amendment. Having dismissed all claims, the court did not permit amendment of the claims for damages because they ran afoul of the limitations period; however, the court permitted amendment with respect to injunctive relief.

The Case is No. 5:25-cv-08215-VKD.

Judge: DeMarchi, V.

Attorneys: David Du Leray (Quinn Emanuel Urquhart & Sullivan LLP) for Ollywan Ltd. David Zahler Gringer (Wilmer Cutler Pickering Hale & Dorr LLP) for Meta Platforms, Inc.

Companies: Ollywan Ltd.; Meta Platforms, Inc.

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