IP Law Daily, TRADEMARK NEWS—TNSG Health petitions Supreme Court over decision allowing infringement claims based on trademark registrations, (Feb 23, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

The Ninth Circuit improperly allowed trademark infringement liability to be inferred from registration filings alone, thereby collapsing the statutory distinction between trademark registration and infringement, the petition alleges.

TNSG Health Co., Ltd, a nutritional supplement company, along with affiliated entities, has petitioned the U.S. Supreme Court to review a Ninth Circuit decision that upheld a multimillion-dollar default judgment in a trademark dispute, arguing that the appellate court improperly allowed infringement claims to proceed solely on the basis of trademark registration filings. The petitioners alleged that the ruling conflicted with the Lanham Act’s text and longstanding federal precedent by equating the statutory standard for trademark registration with the more demanding requirement for trademark infringement. It contends that infringement liability requires proof that a mark was used in commerce in connection with the sale, offering for sale, distribution, or advertising of goods or services, and that mere certification of “use in commerce” in trademark applications cannot satisfy this element. The petitioners seek reversal of the Ninth Circuit’s judgment, dismissal of the complaint, and restoration of uniform federal standards governing pleading and proof of trademark infringement (TNSG Health Co., Ltd. v. Clarke, No. 25-964 (U.S. Feb. 10, 2026)).

Background. Respondent Murray Colin Clarke developed dietary supplements for children and founded Biozeal, LLC, which directed manufacturing and distribution. The petitioners included TNSG Health Co., Ltd., Alps Holding Company Limited, and several affiliated entities operating in supplement manufacturing, brand licensing, and trademark management. According to the underlying complaint, the respondents alleged that these companies functioned as an interconnected enterprise under common ownership and management, with overlapping corporate roles and coordinated trademark activity. The respondents further claimed that the companies collectively engaged in a scheme involving trademark registrations and related business conduct.

In the lawsuit, Clarke asserted that his CHILDLIFE and CHILDLIFE ESSENTIALS trademarks were used in connection with children’s nutritional supplements. Petitioners had applied to register several marks, including VITASPA, IFLEX, and a Chinese-character mark, for use in connection with supplements and related services. As part of the registration process, statements were submitted under penalty of perjury declaring that the marks were used in commerce and that specimens, including product labels and website screenshots, were provided. Respondents alleged that these specimens included images of products bearing the disputed CHILDLIFE marks and relied heavily on these filings to support their infringement claims.

Respondents filed suit in 2021 in the Central District of California, asserting trademark infringement and related claims. In 2024, the district court entered a default judgment against the petitioner after finding that it failed to defend the action and had engaged in willful infringement. The court awarded statutory damages and attorney’s fees. On appeal, the Ninth Circuit affirmed the judgment, concluding that the complaint sufficiently alleged infringement because it included trademark applications certifying that the accused marks had been used in commerce.

Petition. The petition asserts that the appellate court misinterpreted the Lanham Act and created a significant conflict in federal law. It further alleges that the Ninth Circuit fundamentally erred by conflating two distinct statutory standards under the Lanham Act. It argues that the statute permits registration of any mark “used in commerce,” but infringement liability requires a separate and additional showing that the mark was used in commerce in connection with specific commercial activities such as sale or distribution. It maintains that the appellate court ignored this statutory distinction and effectively eliminated an essential element of infringement claims by allowing allegations of registration alone to satisfy the pleading requirement.

The petition also asserts that the Ninth Circuit’s reasoning conflicted with Supreme Court precedent governing pleading standards. Citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), petitioners argued that plaintiffs must plead facts that plausibly indicate unlawful conduct rather than facts equally consistent with lawful activity. It contends that statements in trademark applications certifying “use in commerce” were equally consistent with non-infringing conduct and therefore could not plausibly establish infringement without additional factual allegations regarding actual marketplace use.

The petition further alleges that the decision conflicted with a broad consensus among federal courts holding that trademark applications alone cannot establish infringement liability. It cites Marshall Tucker Band, Inc. v. M T Industries, Inc., 238 F. Supp. 3d 759 (D.S.C. 2017), and Unicorn Crowdfunding, Inc. v. New St. Enterprises, Inc., 507 F. Supp. 3d 547 (S.D.N.Y. 2020), both of which rejected infringement claims based solely on trademark filings. It argues that these decisions reflected a uniform understanding that filing an application or certifying use does not constitute actionable commercial conduct under the Lanham Act.

Additionally, the petition alleges that the appellate court misunderstood the practical distinction between registration and infringement standards. Petitioners cited guidance from the U.S. Patent and Trademark Office explaining that certain activities, such as transportation of goods or shipments made during regulatory approval processes, may qualify as “use in commerce” for registration purposes but would not constitute commercial use sufficient for infringement liability. It argued that this distinction demonstrated the error of the Ninth Circuit’s conclusion that the gap between the two standards was “narrow.”

The petition further asserts that the decision undermined core principles of trademark law by allowing plaintiffs to proceed without evidence of actual infringing conduct. It contends that the Ninth Circuit’s approach effectively nullified the requirement that plaintiffs plead facts demonstrating use of a mark in connection with marketplace transactions. According to the petition, this interpretation could allow infringement claims to proceed to discovery and trial based solely on trademark filings, thereby imposing significant litigation costs and encouraging settlement of weak claims.

Further, the petition emphasizes the broader legal significance of the issue, arguing that the question presented was recurring and important because trademark applications are routinely filed in commercial practice. Petitioners maintained that the Ninth Circuit’s rule would apply not only at the pleading stage but also at later stages of litigation, potentially allowing plaintiffs to obtain judgments without proving actual infringing conduct. The petition argues that this procedural posture made the case an ideal vehicle for resolving a conflict among federal courts.

Reliefs. The petitioners request that the Supreme Court grant certiorari, reverse the Ninth Circuit’s decision, and remand with instructions to dismiss the complaint. They seek restoration of a uniform rule requiring plaintiffs to plead and prove actual commercial use of a mark in connection with sales or distribution before establishing infringement liability. Finally, they argue that such relief is necessary to preserve the statutory distinction between registration and infringement standards and to ensure consistency in federal trademark law.

The Case is No. 25-964.

Attorneys: Peter B. Siegal (Norton Rose Fulbright US LLP) for TNSG Health Co. Ltd.

Companies: TNSG Health Co. Ltd.

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