FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE JACK RUSSELL TERRIER 

NETWORK OF NORTHERN

CALIFORNIA, a California non-profit

corporation; CLAUDIA SPRAGUE;

GEORGIA FISHER,

Plaintiffs-Appellants, No. 02-17264

v.  D.C. No.

AMERICAN KENNEL CLUB, INC., a CV-98-20932-JW

New York not-for-profit

corporation; THE JACK RUSSELL

TERRIER CLUB OF AMERICA, a

Kentucky non-profit corporation,

Defendants-Appellees. 

5279
THE JACK RUSSELL TERRIER 

NETWORK OF NORTHERN

CALIFORNIA, a California non-profit

corporation; CLAUDIA SPRAGUE;

GEORGIA FISHER,

Plaintiffs-Appellees,

v. No. 03-15345

AMERICAN KENNEL CLUB, INC., a D.C. No.  New York not-for-profit CV-98-20932-JW

corporation, OPINION

Defendant,

and

THE JACK RUSSELL TERRIER

CLUB OF AMERICA, a Kentucky

non-profit corporation,

Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

December 8, 2004—San Francisco, California

Filed May 17, 2005

Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

5280 JACK RUSSELL TERRIER NETWORK v. AKC
COUNSEL

Malcolm A. Misuraca, Law Offices of Malcolm A. Misuraca,

Newport Beach, California, Victoria E. Brieant, Stroock &

Stroock & Lavan LLP, Miami, Florida, for the plaintiffsappellants. 

Eric R. Haas, Charles A. Brown, Burnham Brown LLP, Oakland, California, for the defendants-appellees.

JACK RUSSELL TERRIER NETWORK v. AKC 5283
OPINION

GOULD, Circuit Judge: 

We must decide whether a complaint alleging a national

dog club’s policy banning members that register their dogs

with an alternative club raises cognizable claims of group

boycott pursuant to the Sherman Act. We must also decide

whether Appellants’ claim of false advertising pursuant to the

Lanham Act was properly dismissed for lack of standing after

trial. 

The Jack Russell Terrier Network of Northern California

(“JRTNNC”) and individual Jack Russell Terrier owners and

breeders Claudia Sprague and Georgia Fisher (collectively

“Appellants”) appeal the district court’s judgment, following

a dismissal of antitrust claims on motion, and a dismissal of

false advertising claims after bench trial, in favor of the Jack

Russell Terrier Club of America (“JRTCA”). The JRTNNC,

a former regional affiliate of the JRTCA, seeks declaratory

and injunctive relief regarding a JRTCA policy known as the

“Conflicting Organization Rule” (“COR”), which provides

that JRTCA affiliates and members will recognize only the

JRTCA registry of Jack Russell Terriers, and will not register

their dogs with conflicting organizations such as the American Kennel Club (“AKC”). The Appellants argue that the

COR and its enforcement mechanisms constituted a “group

boycott” and “false advertising” in violation of the Sherman

and Lanham Acts, and unlawfully subjected the JRTNNC to

liability from those injured by the policy. 

The district court granted the JRTCA’s motion to dismiss

the Appellants’ Sherman Act claims. After a bench trial, the

district court held that the Appellants lacked standing to raise

a claim under the Lanham Act. The Appellants appealed the

dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6) and the trial ruling. The JRTCA cross-appealed the

district court’s decision to deny the JRTCA any of its costs.

5284 JACK RUSSELL TERRIER NETWORK v. AKC
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm. 

I

This case arises from a philosophical disagreement between

groups of well-intentioned people dedicated to a breed of dog,

the Jack Russell Terrier. A preliminary historical note is illuminating: Jack Russell Terriers were first bred in the south of

England in the mid-1800’s to hunt European red fox, both

over and underground, for the sport of kings. The breed got

its name from a renowned Nineteenth Century British huntsman and breeder, Parson John Russell, known as “The Sporting Parson,” whose passion for fox hunting and working

terriers was legendary. Russell developed and bred the particular strain of white-bodied “fox” terriers now known as Jack

Russell Terriers to emphasize their working and hunting abilities.1

The JRTCA is a national breed club and dog registry with

standards aimed at preserving the working-dog characteristics

and heritage of the Jack Russell Terrier.2 Formed in 1976, the

JRTCA is the largest organization and registry of Jack Russell

Terriers in the world, and derives a substantial amount of

income from interstate and foreign commerce in the Jack Russell Terrier.3

 As its membership expanded, regional affiliates

of the JRTCA formed, and were required to comply with the

1For more, see generally D. Caroline Coile, The Jack Russell Terrier

Handbook 1-14 (2000). 

2

JRTCA Constitution, Art. I, § 2(g), at www.terrier.com/jrtca/

constitution.php3 (last visited Apr. 25, 2005). For more on the JRTCA, see

the JRTCA website at www.terrier.com. 

3With regard to the Sherman Act claims that were dismissed pursuant

to Rule 12(b)(6) for failure to state a claim, we take the facts as alleged

in the Appellants’ third amended complaint as true. With regard to the

facts as pertinent to the Lanham Act claim of false advertising, the facts

are as determined by the district court’s findings of fact after bench trial.

In general, these facts are the same. 

JACK RUSSELL TERRIER NETWORK v. AKC 5285
JRTCA’s constitution as terms of membership. The JRTCA

promotes, runs, and sanctions national dog trials for the Jack

Russell Terrier. The club affiliates host regional Jack Russell

Terrier shows and trials for which the JRTCA provides certified judges. The winners of the regional shows are eligible for

the annual national JRTCA Jack Russell Terrier show. Jack

Russell Terrier owners and breeders attend these JRTCA

events to have their dogs compete in trial events and be

judged in shows to the breed standard; to advertise, buy, and

sell terriers; and to win awards. Awards are marks of excellence for dog breeders that they use to differentiate and promote their kennels in future commerce. Only JRTCA

members are allowed to participate in JRTCA events. 

Until recently, the Jack Russell Terrier was not a breed recognized by the AKC, the well-known umbrella registry for

almost all types of pure-bred dogs in the United States. Consequently, unlike other breeds recognized by the AKC, there

was no AKC registry of Jack Russell Terrier breeders or an

AKC-breed certification by which potential owners could verify the authenticity of prospective dogs. Aiming to remedy

this omission, in 1991 a minority group of JRTCA members

asked the AKC to recognize the Jack Russell Terrier as an

official breed. They formed a “foundation stock” of dogs to

stand as a base for a AKC dog registry and to be used to trace

the pedigree of offspring. The AKC accepted the Jack Russell

as an official AKC-certified breed in 1998.4

The JRTCA opposed the AKC listing of Jack Russell Terriers, believing that an alternative all-breed kennel club standard and registry was not in the best interests of the dog. The

JRTCA emphasizes the working-dog characteristics of the

breed, and believes that any kennel club standard would over

time change the dog into a show breed, bred for form not func4Effective April 1, 2003, the official name of the AKC breed of Jack

Russell Terrier was changed to the “Parson Russell Terrier.” 

5286 JACK RUSSELL TERRIER NETWORK v. AKC
tion.5

 The JRTCA undertook a campaign to discourage its

members and the public from participating with the AKC,

which included the adoption of the COR.6 As part of its policy,7

JRTCA members who registered their dogs with the AKC had

5AKC standards focus on creating a more uniform dog in size and color,

with less emphasis on a dog’s “working” traits. AKC dogs are certified by

litter at birth by the pedigree of their parents. In contrast, the JRTCA

requires the terrier to have reached one year of age, have a traceable pedigree going back at least four generations, and veterinarian’s certificate

attesting that the dog has no inherited defects. A physical difference

between the AKC’s breed standard and the JRTCA’s breed standard is

found in two inches of height: a JRTCA Jack Russell Terrier must measure between ten and fifteen inches, while an AKC Parson Russell Terrier

must measure between twelve and fifteen inches. 

6At the end of the JRTCA constitution is the following notice: 

IMPORTANT

The JRTCA is adamantly opposed to recognition of the Jack Russell Terrier by ANY kennel club. The JRTCA believes that inclusion in any all-breed registry is detrimental to the protection and

preservation of the Jack Russell. The JRTCA’s unique registry,

with its strict inbreeding limitations and health requirements,

working certificate, sanctioned judge and field trial programs,

and breeder’s code of ethics are all designed to preserve the Jack

Russell’s unique working ability, great intelligence, sound physical structure, and broad standard so necessary to preserve this

unspoiled type, or strain, of working terrier known as the Jack

Russell. 

The JRTCA feels so strongly about the impact of kennel club recognition on the future of the JR that persons participating in any

organization or registry in conflict with JRTCA goals and objectives are not accepted for membership in the JRTCA. 

The JRTCA, at http://www.terrier.com/jrtca/constitution.php3 (last visited

Apr. 25, 2005). There is a similar notification on the JRTCA’s application

for membership.

7The COR provided that affiliates and members of the JRTCA will recognize only the JRTCA-terrier registry, will not become members in conflicting organizations, will not register their terriers with conflicting

organizations, and will not exhibit their terriers at JRTCA-sanctioned

events if they violate the COR. 

JACK RUSSELL TERRIER NETWORK v. AKC 5287
their JRTCA membership terminated and were not permitted

to participate in JRTCA dog shows. 

Georgia Fisher and Claudia Sprague, two of the Appellants,

are former Jack Russell Terrier breeders who were barred

from competing in JRTCA-sanctioned terrier trials after registering their dogs with the AKC. In addition to being denied

access to JRTCA dog trials and shows, the JRTCA “blacklisted” members who registered with the AKC by listing them

in the JRTCA’s bimonthly magazine dedicated to Jack Russell Terriers, True Grit.

8

 Both Fisher and Sprague were

“blacklisted” in True Grit. The Appellants allege that after the

listing other Jack Russell Terrier owners and breeders would

not associate with Fisher, breed with her dogs, or buy her

puppies. 

Fisher and Sprague then independently consulted an attorney who wrote letters to the JRTNNC threatening legal action

if the JRTNNC refused to allow the breeders to participate in

future JRTNNC dog shows.9 The JRTNNC in turn contacted

the JRTCA, requesting indemnification from the national

organization if Fisher or any other breeder sued the JRTNNC

for enforcing the JRTCA’s COR, and denying those owners

the ability to participate in JRTNNC events. The JRTCA

responded that, while it would continue to require the JRTNNC to comply with JRTCA regulations and to enforce them

against members who registered dogs with the AKC, the

JRTCA would not indemnify the JRTNNC from any possible

liability. The JRTNNC concluded that it could not subject

itself and its members to potential liability without indemnifi8The so-called “blacklisting” of breeders refers to a listing in True Grit

with the caption: “The following breeders/owners are previous JRTCA

members who to our knowledge have registered their terrier(s) with the

AKC.” 

9As discussed above, for breeders, the dog show circuit is a major

means by which to differentiate their kennels. A dog that wins show

awards and honors increases its value for sale or breeding, as well as the

value of its offspring. 

5288 JACK RUSSELL TERRIER NETWORK v. AKC
cation, and therefore would permit AKC-registered owners to

participate in its regional terrier events. The JRTCA then terminated the JRTNNC’s charter. 

The JRTNNC filed suit in the United States District Court

for the District of Northern California, naming the JRTCA

and the AKC as defendants, and claiming that the JRTCA’s

COR was an illegal group boycott of AKC dog owners and

breeders in violation of § 1 of the Sherman Act, 15 U.S.C.

§ 1. 

The AKC moved to dismiss based on the fact that the JRTNNC had failed to point to any AKC conduct causing the

JRTNNC injury. The JRTCA also moved to dismiss. The district court granted both motions and dismissed the action,

granting leave for the JRTNNC to amend its complaint as

against the JRTCA. 

The JRTNNC filed a second amended complaint, adding

Sprague and Fisher as co-plaintiffs. The JRTNNC then filed

a third amended complaint, adding the Jack Russell Terrier

Club of Great Britain as a named co-defendant, as well as two

regional JRTCA affiliates, the California South Coast Jack

Russell Terrier Club (“SCJRTC”) and the Jack Russell Terrier

Club of Central California (“JRTCCC”).10 The third amended

complaint requested declaratory and injunctive relief, and

raised seven claims asserting a “group boycott” in violation of

the Sherman Act, a claim of “false description” in violation

of the Lanham Act, and two state law claims of unfair competition. 

The JRTCA again moved for a Rule 12(b)(6) dismissal.

The district court granted the motion as to the JRTNNC’s

Sherman Act claims, but denied the motion as to the Lanham

10The Jack Russell Terrier Club of Great Britain settled with the Appellants before the second motion to dismiss, agreeing to drop their own COR

as part of the terms of that settlement. 

JACK RUSSELL TERRIER NETWORK v. AKC 5289
Act claim and the California state law claims. Regarding the

Sherman Act “group boycott” claims, the district court found

that the JRTNNC had not alleged that the JRTCA-affiliated

local clubs pursued different economic goals than the national

JRTCA, and that this lack of multiple actors was fatal to the

Plaintiffs’ Sherman Act claims under Copperweld Corp. v.

Independence Tube Corp., 467 U.S. 752 (1984). The motion

to dismiss was denied with regard to the Lanham Act claim

and California state law unfair competition claims, and those

issues proceeded to trial. 

After a seven-day bench trial, the district court concluded

that, while the “blacklisting” advertisement in True Grit constituted commercial speech which could violate the Lanham

Act, the JRTCA’s actions did not violate the Lanham Act or

the California Business and Professions Code, § 17200 et

seq., because its actions were targeted at the AKC, not the

Plaintiffs. The court held that the JRTNNC was not a commercial competitor of the JRTCA, and therefore lacked standing to bring a Lanham “false advertising” claim. This timely

appeal of both the partial Rule 12(b)(6) dismissal and trial ruling on the merits followed.11

The JRTCA also filed a bill of costs for approximately

$18,000 subsequent to the district court’s ruling. The JRTNNC moved to have the court review those costs. The district

court denied the JRTCA’s costs in their entirety, and the

JRTCA timely cross-appealed that denial. 

II

We first address the district court’s dismissal of the Appellants’ Sherman Act claims.12

11The district court also ruled against the Appellants on their related

state law unfair competition claims. Those claims were not appealed. 

12We review the dismissal of a Sherman Act § 1 claim pursuant to Rule

12(b)(6) de novo. Les Shockley Racing, Inc. v. Nat’l Hot Rod Ass’n., 884

5290 JACK RUSSELL TERRIER NETWORK v. AKC
A

[1] Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1.

Section 1 is intended to prohibit actions that unreasonably

restrain competition. See Bus. Elecs. Corp. v. Sharp Elecs.

Corp., 485 U.S. 717, 723 (1988). The challenged “action” in

this case is the COR policy of the JRTCA and its enforcement. At the crux of Appellants’ claim is the argument that,

by boycotting all AKC-registered or dual AKC/JRTCAregistered dog owners and breeders from JRTCA membership

and participation in JRTCA-sanctioned events, the JRTCA

and participating JRTCA-regional affiliates unreasonably

restrained Jack Russell Terrier commerce that would otherwise stem from those JRTCA-sanctioned events, the “marketplace” of Jack Russell Terrier commerce. Because JRTCA

registration is the equivalent of the “industry standard,” the

Appellants allege that the JRTCA’s COR manipulates the

market unreasonably by eliminating superior dogs not based

on merit but simply because of their dual registration. 

[2] Under a “rule of reason” analysis of the § 1 claim,13 the

F.2d 504, 507 (9th Cir. 1989). We affirm the district court’s dismissal

“only if it is clear that no relief could be granted under any set of facts that

could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Thus, we do not evaluate whether the Appellants have established any facts in comparison to those alleged by the

JRTCA, but rather examine whether, if all the facts the Appellants have

alleged were true, they could make out their claims. 

13Activity which is alleged to have been in violation of § 1 may be subject to a per se standard, or alternatively, § 1 liability might be imposed

for concerted action which violates the “rule of reason” standard. See Paladin Assocs., Inc. v. Montana Power Co., 328 F.3d 1145, 1154 (9th Cir.

2003). “The rule of reason weighs legitimate justifications for a restraint

against any anticompetitive effects.” Id. at 1156. The parties do not dispute the district court’s determination that a rule of reason analysis is the

proper framework within which to address Appellants’ Sherman Act

JACK RUSSELL TERRIER NETWORK v. AKC 5291
Appellants must allege facts that could establish three elements: (1) the existence of a contract, combination, or conspiracy among two or more separate entities that (2)

unreasonably restrains trade and (3) affects interstate or foreign commerce. Am. Ad Mgmt., Inc. v. GTE Corp., 92 F.3d

781, 784, 788 (9th Cir. 1996). Our focus is the first element,

which contains a “basic distinction between concerted and

independent action,” Monsanto Co. v. Spray-Rite Serv. Corp.,

465 U.S. 752, 761 (1984), such that a combination or conspiracy requires the concerted action of more than a single entity.

Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1261 (9th

Cir. 1983). 

[3] In Copperweld, the Supreme Court held that a corporation and its wholly owned subsidiaries were legally incapable

of “conspiring” for the purposes of § 1. 467 U.S. at 771

(explaining that a parent corporation and its subsidiary “have

a complete unity of interest . . . . [T]here is no sudden joining

of economic resources that had previously served different

interests . . . .”). The Court reasoned that the coordinated

activity of parties lacking independent sources of economic

power and separate interests does not warrant judicial scrutiny. Id. at 770-71. For example, the “officers or employees

of the same firm do not provide the plurality of actors imperative for a § 1 conspiracy” because they are “not separate economic actors pursuing separate economic interests, so

agreements among them do not suddenly bring together economic power that was previously pursuing divergent goals.”

Id. at 769. Rather, an action requires scrutiny under § 1 of the

Act if it “deprives the marketplace of the independent centers

of decision making that competition assumes and demands.”

Id.

claims. Id. at 1155-56. We agree that the district court properly considered

that the rule of reason is to be applied “where the economic impact of the

challenged practice is not obvious.” Harkins Amusement Enters., Inc. v.

Gen. Cinema Corp., 850 F.2d 477, 486 (9th Cir. 1988) (quoting Dimidowich v. Bell Howell, 803 F.2d 1473, 1480 (9th Cir. 1986). 

5292 JACK RUSSELL TERRIER NETWORK v. AKC
Lower courts have since applied Copperweld’s reasoning

(sometimes referred to as the “single-entity” rule) to a broader

variety of economic relationships. See, e.g., Freeman v. San

Diego Ass’n of Realtors, 322 F.3d 1133, 1147-48 (9th Cir.

2003) (describing cases). We have held that the single entity

rule applies to principal-agent relationships, Calculators

Hawaii, Inc. v. Brandt, Inc., 724 F.2d 1332, 1336 (9th Cir.

1983), as well as to an agreement between a franchiser and

franchisee, Williams v. I.B. Fischer Nevada, 999 F.2d 445,

447-48 (9th Cir. 1993) (per curiam). See also Levi Case Co.,

Inc. v. ATS Prods. Inc., 788 F. Supp. 428, 431-32 (N.D. Cal.

1992) (holding that a patent holder was legally incapable of

conspiring with the patent licensee). Two of our sister circuits

have also held that separate entities with a common economic

interest and without divergent interests are incapable of conspiring for § 1 purposes in other contexts. See, e.g., Bell v.

Fur Breeders Agric. Coop., 348 F.3d 1224, 1232-35 (10th

Cir. 2003) (holding that a mink-ranching cooperative’s board

members were incapable of conspiring with the member

ranches); City of Mt. Pleasant v. Associated Elec. Coop., Inc.,

838 F.2d 268, 275-78 (8th Cir. 1988) (holding that the members of an electric-utility cooperative with common economic

interests were incapable of conspiring). This sets the stage for

our evaluation whether the JRTCA and its regional affiliates

could conspire within the meaning of the Sherman Act as

alleged in the complaint. 

B

[4] Whether a national breed club and registry and several

of its regional affiliates are capable of conspiring as separate

entities under § 1 of the Sherman Act is a question of first

impression. Although the single-entity inquiry is unique to the

facts of each case, Williams, 999 F.2d at 447, in our most

recent discussion we distilled general principles to guide us:

The crucial question is whether the entities alleged to have

conspired maintain an “economic unity,” and whether the

entities were either actual or potential competitors. Freeman,

JACK RUSSELL TERRIER NETWORK v. AKC 5293
322 F.3d at 1148-49 (summarizing cases and concluding that

“where firms are not an economic unit and are at least potential competitors, they are usually not a single entity for antitrust purposes.”). Our inquiry is a functional one.

Copperweld, 467 U.S. at 773 n.21 (stating the “principle that

substance, not form, should determine whether a separately

incorporated entity is capable of conspiring under § 1”);

United States v. Sealy, Inc., 388 U.S. 350, 353 (1967).14

[5] Assuming all the Appellants’ alleged facts to be true,

they have not alleged sufficient facts to support a claim that

the JRTCA and its affiliates are separate entities pursuing different economic goals, capable of conspiring for Sherman Act

purposes. First, regarding the parties’ unity of economic interest, the Appellants did not allege in what manner the JRTCA

and the JRTCA regional affiliates named as co-defendants

had divergent economic interests, or what goals the affiliates

pursued other than those of the JRTCA. Although we assume

the truth of the facts alleged in the complaint, we cannot

assume any facts necessary to the Appellants’ claim that they

have not alleged. Associated Gen. Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

In fact, as the district court concluded, the objectives of the

JRTCA and its regional affiliates are “common, not disparate.” See Copperweld, 467 U.S. at 771. Both the national

club and its affiliates have a common goal—the best interests

of the Jack Russell Terrier—and both the JRTCA and its

regional affiliates hope to protect their identical economic

interest—the current and future value of the Jack Russell Terrier breed, as determined by the JRTCA-breed standards. See

14As a preliminary matter, Appellants argue that the “single entity”

determination is an affirmative defense that must be plead and proven by

the JRTCA and is therefore improperly resolved on a motion to dismiss.

To the contrary, as covered above, the existence of more than one entity

sufficient to conspire is part of the first element required to allege a § 1

violation. See, e.g., Amer. Ad. Mgmt. Inc., 92 F.3d at 784. 

5294 JACK RUSSELL TERRIER NETWORK v. AKC
id. at 770-71 (“Because [such] coordination . . . does not represent a sudden joining of two independent sources of economic power previously pursuing separate interests, it is not

activity that warrants § 1 scrutiny.”); City of Mt. Pleasant,

838 F.2d at 274-75 (“[T]wo or more legally distinct entities

cannot conspire among themselves if they pursue[ ] the common interests of the whole rather than interests separate from

those of the [group] itself.”) (quoting Copperweld, 467 U.S.

at 770-71) (alterations in original). Moreover, the JRTCA’s

affiliates are best understood as extensions of the national

club rather than independent economic actors. The JRTCA’s

affiliation agreement mandates that affiliates, among other

requirements, must: be solely affiliated with the JRTCA;

adopt the JRTCA constitution and uphold its goals, purposes,

and policies; recognize only the JRTCA-terrier registry; and

uphold the JRTCA’s policy on conflicting organizations. By

the terms of the affiliation agreement, then, the affiliates and

the JRTCA share a unity of all relevant interests and policies,

which are controlled entirely by the JRTCA. 

[6] Second and relatedly, the Appellants did not allege that

the JRTCA and its regional affiliates were actual or even

potential competitors, or conspired through the COR to gain

some competitive advantage. See Freeman, 322 F.3d at 1148-

50. Nor can the Appellants do so: The JRTCA is a national

dog club and registry, and the regional dog clubs named as

co-defendants are groups of JRTCA members who have

formed a regional dog club to represent the JRTCA in their

region and host JRTCA events. The JRTCA affiliate agreement also includes provisions requiring that affiliates cannot

establish competing dog registries, breed standards, or terrier

events outside of those sanctioned and judged by the JRTCA.

As discussed above, the regional affiliates’ sole purposes are

to be affiliated with the national club and to promote the

JRTCA breed standard and philosophy. In no way do the

affiliates compete with the national club.15

15Because this case concerns a national dog club, it does not fit neatly

into the mold of most antitrust cases analyzing for-profit corporations,

JACK RUSSELL TERRIER NETWORK v. AKC 5295
Appellants erroneously rely on Los Angeles Memorial Coliseum Commission v. National Football League, in which we

held that the N.F.L. and its teams were not a single entity for

Sherman Act purposes. 726 F.2d 1381, 1390 (9th Cir. 1984).

Los Angeles Memorial Coliseum is distinguishable because,

unlike here, the N.F.L. teams at issue in that case were wholly

independent business entities that had separate identities from

the larger organization and competed against one another for

profit. Id. at 1389-90.16

[7] In sum, nothing in the Appellants’ allegations supports

the conclusion that the regional JRTCA affiliates acted as

independent, self-sufficient agents that could have conspired

with the national club. The Appellants have articulated a

claim that only involves activity occurring within a single

enterprise. As we have said, such a claim falls within the

sphere of Copperweld preclusion and accordingly is not a viable antitrust claim. We hold that the Appellants did not allege

sufficient facts to support a claim that the JRTCA and its

their officers, and/or their subsidiaries. The JRTCA does not own its

regional affiliates, nor is there an agreement between them to divide profits and losses. However this lack of a traditional corporate structure is less

persuasive in the non-profit context, and the difference alone is insufficient to require reversal. Copperweld, 467 U.S. at 773 n. 21 (instructing

that the question of whether entities have the capability to conspire is

determined by the substance of a relationship, not its form); Thomsen v.

W. Elec. Co., Inc., 680 F.2d 1263, 1266 (9th Cir. 1982) (“[T]he mere fact

of separate incorporation, without more, is not sufficient to prove the

capability for conspiracy.”) (internal quotation marks omitted). As

explained above, in substance the JRTCA and its affiliates share a unity

of policy, identical economic interests in the Jack Russell Terrier breed as

defined by JRTCA standards, and were never actual or potential competitors that decided to conspire. We think this relationship sufficiently akin

to the Court’s reasoning in Copperweld to apply the single entity rule

under these facts. 

16Los Angeles Memorial Coliseum also predated the Supreme Court’s

clarifying discussion in Copperweld. 

5296 JACK RUSSELL TERRIER NETWORK v. AKC
affiliates pursued divergent economic goals, and we affirm

the district court’s Rule 12(b)(6) dismissal.17

III

We next address the Appellants’ Lanham Act claim.18

[8] Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),

prohibits the use of false designations of origin, false descriptions, and false representations in the advertizing and sale of

goods and services. Smith v. Montoro, 648 F.2d 602, 603 (9th

Cir. 1981). Appellants argue that the publication of the former

JRTCA breeders who had registered with the AKC was a

false advertisement that misrepresented the quality of their

Jack Russell Terriers by falsely implying that JRTCA-only

terriers are superior to all other Jack Russell Terriers and

falsely implying that those dogs excluded do not meet JRTCA

standards. This ostracizing of breeders who are “blacklisted”

may cause economic harm, because, as discussed above,

breeders depend on their dogs’ reputation of quality and on

the trial awards won at JRTCA events to sell and breed their

dogs. 

Appellants admit that the JRTNNC is not a direct competitor with the JRTCA, but point out that standing of noncompetitors has been recognized in other Lanham Act cases,

17Our precedent requires us to recognize that our holding is limited to

the particular circumstances we address. Williams, 999 F.2d at 447

(“Whether corporate entities are sufficiently independent requires an

examination of the particular facts of each case.”). We express no opinion

on whether other national clubs and their regional or local affiliates could

be considered a “single entity” for Sherman Act purposes in other factual

and competitive settings. 

18After a bench trial, we review the district court’s findings of fact for

clear error, and we review the court’s conclusions of law de novo. Lentini

v. California Ctr. for the Arts, Escondido, 370 F.3d 837, 843 (9th Cir.

2004). We review questions of standing and statutory construction de

novo. Barrus v. Sylvania, 55 F.3d 468, 469 (9th Cir. 1995). 

JACK RUSSELL TERRIER NETWORK v. AKC 5297
and Appellants claim the district court erred in requiring that

the Appellants be in direct competition with the JRTCA. See

Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1107-10 (9th Cir.

1992); Smith, 648 F.2d at 607-08. Alternatively, Appellants

argue that breeders Sprague and Fisher, as members of the

AKC and targets of the JRTCA “blacklist,” have standing to

bring their claim. 

[9] Appellants’ reliance on Waits and Smith is misplaced.

We have said that different causes of action alleged pursuant

to the different subsections of 15 U.S.C. § 1125(a) have different standing requirements. Barrus, 55 F.3d at 469-70.

Smith and Waits involved the “false association” prong of

§ 43 of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), under

which a plaintiff need only allege commercial injury based

upon the deceptive use of a trademark or its equivalent to satisfy standing requirements. Id. That the parties be competitors

“in the traditional sense” is not required. Waits, 978 F.2d at

1110. On the other hand, for standing pursuant to the “false

advertising” prong of § 43(a) of the Lanham Act, 15 U.S.C.

§ 1125(a)(1)(B), a plaintiff must show: (1) a commercial

injury based upon a misrepresentation about a product; and

(2) that the injury is “competitive,” or harmful to the plaintiff’s ability to compete with the defendant. Barrus, 55 F.3d

at 470 (citing Halicki v. United Artists Communications, Inc.,

812 F.2d 1213, 1214 (9th Cir. 1987)). 

[10] In this case, the Appellants allege false advertising in

violation of § 1125(a)(1)(B). The JRTNNC is not a competitor of the JRTCA that has suffered a competitive injury. Nor

does the fact that Sprague and Fisher were the target of the

True Grit advertisement make them competitors with the

JRTCA that have suffered competitive injuries.19 We hold the

19Appellants contend that the AKC would have had standing as a competitor of the JRTCA, and lament that, while the Appellants tried to join

the AKC in this litigation, the AKC chose not to remain. However, the dismissal of the AKC as a party was not appealed and is not before us.

5298 JACK RUSSELL TERRIER NETWORK v. AKC
district court did not err in concluding the Appellants lacked

standing under the Lanham Act.20

IV

Lastly, we address the JRTCA’s cross-appeal of the district

court’s denial of costs.21

[11] Federal Rule of Civil Procedure 54(d)(1)22 creates a

presumption in favor of awarding a prevailing party its costs

other than attorneys’ fees, but vests in the district court the

discretion to refuse to award such costs if the district court

gives specific reasons explaining why the case is not ordinary

and why it would be “inappropriate or inequitable to award

costs.” The Ass’n of Mexican-Am. Educators v. California,

231 F.3d 572, 591, 593 (9th Cir. 2000) (en banc). 

Appellants also argue that, because the AKC would likely have standing,

Appellants should have standing vis à vis terrier owners/breeders Sprague

and Fisher, who now have dogs registered with the AKC. That organization’s possible standing as a competitor of the JRTCA does not make

Sprague and Fisher competitors with the JRTCA. Barrus, 55 F.3d at 470

(“[I]n order to satisfy standing the plaintiff must allege commercial injury

based upon a misrepresentation about a product, and also that the injury

was ‘competitive,’ i.e., harmful to the plaintiff’s ability to compete with

the defendant.”). 

20The parties also debate whether the COR is protected by the First

Amendment. We need not and do not reach this question because the initial issue of standing (or lack thereof) to assert a “false advertising” Lanham Act claim resolves the matter. 

21We review a district court’s denial of costs to a prevailing party for

an abuse of discretion. Berkla v. Corel Corp., 302 F.3d 909, 917 (9th Cir.

2002). A district court abuses its discretion only if “it does not apply the

correct law or if it rests its decision on a clearly erroneous finding of material fact.” Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).

22Rule 54(d)(1) provides in pertinent part: “(1) Costs Other than Attorneys’ Fees. Except when express provision therefor is made either in a

statute of the United States or in these rules, costs other than attorneys’

fees shall be allowed as of course to the prevailing party unless the court

otherwise directs. . . .” 

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[12] The district court gave specific reasons why an award

of costs was inappropriate, noting both the Appellants’ lack

of financial resources and the substantial profit of the JRTCA.

Those reasons have previously been approved by this court as

proper grounds for a denial of costs. See Ass’n of MexicanAm. Educators, 231 F.3d at 592-93. The denial of costs was

not an abuse of discretion. 

AFFIRMED.

5300 JACK RUSSELL TERRIER NETWORK v. AKC