                                                                             FILED
                           NOT FOR PUBLICATION                               DEC 27 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KWAN SOFTWARE ENGINEERING,                       No. 13-15165
INC., a California corporation, DBA
Veripic, Inc.,                                   D.C. No. 3:12-cv-03762-SI

              Plaintiff - Appellant,
                                                 MEMORANDUM*
  v.

FORAY TECHNOLOGIES, LLC, a
Delaware limited liability company,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                     Argued and Submitted November 4, 2013
                            San Francisco, California

Before: REINHARDT, NOONAN, and WATFORD, Circuit Judges.


       Kwan Software Engineering, Inc., dba VeriPic, Inc. (“Veripic”) appeals the

district court’s order denying its motion to preliminarily enjoin Foray



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Technologies, LLC (“Foray”) from making certain public representations that

allegedly constitute false advertising under Section 43(a) of the Lanham Act, 15

U.S.C. § 1125(a), and under California law, Cal. Bus. & Prof. Code § 17500.

         We have appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and

review the denial of a preliminary injunction for abuse of discretion. Alliance for

the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). On the record

before it, the district court did not abuse its discretion, and we accordingly affirm.

1.       The district court did not abuse its discretion in determining that Veripic

failed to prove a likelihood of success on its false advertising claims. Contrary to

Veripic’s protestations, the district court properly held that Veripic had failed to

make a threshold showing of literal falsity. Given its context and the sophisticated

nature of the consumer market, Statement One1 was likely not misleading.

Statements Two and Three regarding “authenticity” were both ambiguous and

Veripic’s evidence at this stage of the case did not persuasively indicate that there

is a singular definition of “authenticity” as that term is understood by law

enforcement customers.




         1
             We refer to the statements in the order they were addressed by the district
court.

                                              -2-
2.     Nor did the district court abuse its discretion in denying the preliminary

injunction as to the other issues raised, because irreparable harm is unlikely. See

Cottrell, 632 F.3d at 1135 (discussing Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 19-24 (2008)). Veripic offered only speculative evidence of the loss of

prospective customers, business goodwill, and market share.

3.     We need not decide whether the district court abused its discretion in

denying Veripic’s motion for leave to file supplemental evidence because Veripic

has not shown that the failure to admit the supplemental evidence was prejudicial.

Cf. McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003) (requiring

a showing that the lower court’s error was prejudicial in the context of an

evidentiary ruling at trial).

4.     Finally, we have reviewed Veripic’s other claims of error and find none.

       AFFIRMED.




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