NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MILO & GABBY LLC, KAREN KELLER,

Plaintiffs-Appellants

v.

AMAZON.COM, INC.,

Defendant-Appellee

DA FANG SUN, AKA SETH L, CHONGQIN WORLD

FIRST ELECTRONIC COMMERCE CO., LTD., AKA

WOTEFUSI, T. LIU, AKA BINGO DEAL, FAC 

SYSTEM, AKA FAC SYSTEM LLC, DINGDING ZOU, 

AKA HAPPY SUNDAY, QIUMEI ZHANG, AKA 

HITECE, CHARLOTTE XIA, NIMBLE JOY, 

AMANIALARASHI2165, MONAQO,

Defendants

______________________ 

2016-1290

______________________ 

Appeal from the United States District Court for the 

Western District of Washington in No. 2:13-cv-01932-

RSM, Judge Ricardo S. Martinez.

______________________ 

Decided: May 23, 2017

______________________ 
2 MILO & GABBY LLC v. AMAZON.COM, INC. 

PHILIP P. MANN, Mann Law Group, Seattle, WA, argued for plaintiffs-appellants. Also represented by JOHN 

WHITAKER, Lane Powell PC, Seattle, WA.

JOHN HUGHES, Bartlit Beck Herman Palenchar & 

Scott LLP, Denver, CO, argued for defendant-appellee. 

Also represented by JOSEPH DOMAN, KATHERINE HACKER;

GREGORY G. GARRE, JONATHAN Y. ELLIS, Latham & Watkins LLP, Washington, DC.

MARK P. WINE, Orrick, Herrington & Sutcliffe LLP, 

Irvine, CA, for amicus curiae eBay, Inc. Also represented 

by MATTHEW HERMAN POPPE, Menlo Park, CA.

______________________ 

Before O’MALLEY, WALLACH, and TARANTO, Circuit 

Judges.

O’MALLEY, Circuit Judge.

Milo & Gabby LLC and Karen Keller (collectively, 

“Milo & Gabby”) appeal from decisions of the Western 

District of Washington finding that Amazon.com, Inc. 

(“Amazon”), through its provision of an online marketplace for third parties and its “Fulfillment by Amazon” 

services, does not infringe the patents, copyrights, and 

trademark of Milo & Gabby. Because the district court 

did not err in granting summary judgment on Milo & 

Gabby’s copyright and trademark allegations, and because Milo & Gabby failed to preserve its patent infringement arguments, we affirm. 

I. BACKGROUND

A. The Parties’ Relevant Products and Services

Milo & Gabby designs and sells a line of “Cozy Companion” pillowcases. The Cozy Companion pillowcase line 

includes animal-shaped pillowcases for children that turn 

a child’s pillowcase into a stuffed animal. Milo & Gabby 
MILO & GABBY LLC v. AMAZON.COM, INC. 3

owns five U.S. design patents for the designs on its pillowcases that are relevant to this case. The company also 

holds copyrights for its pillowcases, its website, and 

various other marketing images, including pictures of the 

founders’ children holding the pillowcases.

Amazon operates a website that offers an online marketplace for customers. Although Amazon sells some of 

the products available on its website, most of the products 

offered for sale on Amazon’s website are offered by thirdparty sellers. When a third-party seller uses Amazon’s 

website to sell a product, the seller provides information 

regarding the product, such as a product description, 

images of the product, and a price for the product. Amazon’s website then automatically generates a “productdetail page” that displays the information and identifies 

the seller.

Amazon also offers third-party sellers a service called 

“Fulfillment by Amazon,” which allows third-party sellers 

to take advantage of Amazon’s logistical network. When 

using this service, a third-party seller sends its product to 

an Amazon fulfillment center, where Amazon stores the 

product. If a customer buys the product from the thirdparty seller, Amazon pulls the product off the shelf, 

packages it, and ships it to the customer on behalf of the 

seller. A third-party seller even can use this service when 

selling products outside of Amazon’s online marketplace; 

for example, a third-party seller can use the service when

selling the product on another website, such as eBay. 

Third-party sellers using the Fulfillment by Amazon 

service maintain full ownership of the products stored by 

Amazon. The third-party seller using this service can 
4 MILO & GABBY LLC v. AMAZON.COM, INC. 

remove its stock at any time by requesting that Amazon 

return the product to the third-party seller.1

B. Sales of Knock-Off Pillowcases

When Milo & Gabby began selling their pillowcases, 

Karen and Steven Keller, the owners of Milo & Gabby, 

used pictures of their children with the pillowcases to 

promote the products. In 2013, Milo & Gabby discovered 

pillowcases selling on Amazon’s website that were knockoffs of Milo & Gabby’s Cozy Companion pillowcases. The 

depictions of the pillowcases for sale actually were of Milo 

& Gabby products, including depictions of the products 

being used by the Kellers’ children. But Amazon did not 

directly sell any of the knock-off pillowcases offered on 

Amazon’s website. The product-detail pages for the 

knock-off pillowcases identified ten different entities as 

third-party sellers. Out of the ten third-party sellers

selling the knock-off pillowcases, only one, FAC System, 

used the Fulfillment by Amazon service.

Milo & Gabby filed a complaint against Amazon on 

October 24, 2013. Upon notice of the lawsuit, Amazon 

removed the product listings and suspended the thirdparty sellers from Amazon’s online marketplace. Some of 

1 A limited exception to this policy exists under certain circumstances in which Amazon must dispose of the 

product. If the exception applies, the agreement states 

that title will transfer to Amazon at no cost in order for 

Amazon to dispose of the product as it sees fit. Although 

Milo & Gabby tries to use this limited exception to show 

that Amazon does obtain title to third-party products in 

some situations, the parties have presented no evidence to 

show that Amazon took title to any of the products at 

issue in this case. Even if Amazon were to take title 

under the Fulfillment by Amazon agreement, it would do 

so only to dispose of the product, not to sell it.

 
MILO & GABBY LLC v. AMAZON.COM, INC. 5

the third-party sellers tried to relist the knock-off pillowcases on Amazon’s online marketplace by changing the 

product name, but Amazon removed the new listings and 

new sellers as soon as it learned of them.

C. Procedural History

Milo & Gabby’s complaint against Amazon asserted

various state and federal claims, including patent infringement, copyright infringement, false designation of 

origin under the Lanham Act, and trademark counterfeiting under the Lanham Act. Relevant to this appeal, the 

district court granted in part Amazon’s motion for summary judgment on July 16, 2015. Milo & Gabby, LLC v. 

Amazon.com, Inc. (Summary Judgment Order), No. C13-

1932RSM, 2015 U.S. Dist. LEXIS 92890 (W.D. Wash. July 

16, 2015). The district court granted the motion as to 

direct copyright infringement because it found “no evidence in the record that Amazon actively reviewed, edited, altered or copied [Milo & Gabby’s] images.” Id. at *11. 

The district court further noted that “Amazon is not the 

seller of the alleged infringing products” because “thirdparty sellers retain full title to and ownership of the 

inventory sold by the third party.” Id. at *15–16.

The district court also granted Amazon’s motion for 

summary judgment as to Milo & Gabby’s Lanham Act 

claims. The court found that Milo & Gabby had provided 

no evidence of any violation of a valid, enforceable mark 

entitled to protection under the Lanham Act. The court 

also rejected Milo & Gabby’s “palming off” allegation

because it found that Milo & Gabby had not raised the 

claim or alleged any facts in the complaint to put Amazon

on notice of this theory. 

The district court denied Amazon’s motion for summary judgment as to Amazon’s liability for direct patent 

infringement, however. Amazon argued that it never sold 

or offered to sell the products within the meaning of 

§ 271(a). In response to Amazon’s motion, Milo & Gabby 
6 MILO & GABBY LLC v. AMAZON.COM, INC. 

argued that Amazon was liable for direct patent infringement because it offered to sell the products; Milo & 

Gabby did not argue that Amazon “sold” the products, 

either individually or jointly. The district court determined that a factual question precluded summary judgment on the “offer to sell” theory.

Prior to trial on the direct infringement claim’s “offer 

to sell” theory, Amazon filed a motion for attorney’s fees 

and costs because of its status as a prevailing party under

both the Copyright Act and the Lanham Act. The district 

court denied Amazon’s motion with respect to the copyright claims, finding that they were not frivolous. But it 

granted Amazon’s request with respect to the Lanham Act 

claims, finding that Milo & Gabby “essentially pursued a 

claim for which they had no evidentiary basis, and then 

attempted to circumvent that problem by improperly 

raising legal arguments never pled in their Complaint.” 

Milo & Gabby, LLC v. Amazon.com, Inc., No. C13-

1932RSM, 2015 U.S. Dist. LEXIS 117213, at *12 (W.D. 

Wash. Sept. 1, 2015). The district court also found that 

Milo & Gabby had ignored the court’s dismissal of the 

Lanham Act claims and continued to argue that it would 

pursue its Lanham Act claims at trial; the court found 

that Milo & Gabby’s “apparent willful ignorance of the 

Court’s dismissal of their Lanham Act claims serves as 

another basis to find frivolousness in this matter.” Id. at 

*13. The court therefore found the case exceptional under 

the Lanham Act and awarded attorney’s fees and costs. 

Id.

As trial approached, the parties agreed that the remaining question, whether Amazon offered the products 

for sale, was a question of law for the district court to 

decide. See Milo & Gabby, LLC v. Amazon.com, Inc., 144 

F. Supp. 3d 1251, 1252 (W.D. Wash. 2015). The district 

court empaneled an advisory jury to answer underlying 

factual questions. Id. After trial, the jury found in favor 

of Amazon on all of the factual questions. Id. Based on 
MILO & GABBY LLC v. AMAZON.COM, INC. 7

the jury’s findings and the evidence presented at trial, the 

district court determined that Amazon did not offer to sell 

the products at issue. Id. at 1252–53.

II. JURISDICTION

Milo & Gabby timely filed a notice of appeal. Before 

proceeding to the merits, we must satisfy ourselves of our 

subject matter jurisdiction over the appeal. Ruhrgas AG 

v. Marathon Oil Co., 526 U.S. 574, 575 (1999). We have 

jurisdiction over “appeal[s] from . . . final decision[s] 

of . . . district court[s] of the United States . . . in any civil 

action arising under . . . any Act of Congress relating to 

patents.” 28 U.S.C. § 1295(a)(1) (2012) (emphasis added).

In its opening brief to this court, Milo & Gabby neither cites to Title 35 of the U.S. Code, which governs 

patents, nor presents any arguments raising issues specific to patent law. See Appellants’ Br. 3, 20–43. In fact, 

Milo & Gabby only uses the word “patent” four times in 

the argument section of its opening brief, and the word 

appears each time in a header or an introductory sentence 

applying equally to Milo & Gabby’s copyright infringement claim. Id. at 20, 29. In contrast, Milo & Gabby 

focuses almost exclusively on its copyright and trademark 

claims, and it repeatedly cites Title 17 of the U.S. Code, 

which governs copyrights, and Title 15 of the U.S. Code,2

which governs trademarks. See id. at 29–43. 

Nevertheless, Milo & Gabby’s complaint alleges patent infringement, J.A. 156, and “Federal Circuit jurisdiction depends on whether the plaintiff’s complaint as 

amended raises patent law issues,” Chamberlain Grp., 

Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1189 (Fed. Cir. 

2 Although Milo & Gabby does not cite to Title 15 

itself, it repeatedly refers to the Lanham Act, which is 

codified in Title 15 of the U.S. Code.

 
8 MILO & GABBY LLC v. AMAZON.COM, INC. 

2004) (citations omitted). We therefore have jurisdiction 

over the case pursuant to 28 U.S.C. § 1295(a)(1) (2012). 

III. DISCUSSION

We review a district court’s grant of a motion for 

summary judgment under the law of the regional circuit. 

Teva Pharm. Indus. Ltd. v. AstraZeneca Pharm. LP, 661 

F.3d 1378, 1381 (Fed. Cir. 2011). The Ninth Circuit 

reviews the grant of a motion for summary judgment de 

novo. Universal Health Servs. Inc. v. Thompson, 363 F.3d 

1013, 1019 (9th Cir. 2004). We review the district court’s 

award of attorney’s fees under the Lanham Act for abuse 

of discretion. See Highmark Inc. v. Allcare Health Mgmt. 

Sys., 134 S. Ct. 1744, 1748–49 (2014); Octane Fitness, 

LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 

1756; see also Sunearth, Inc. v. Sun Earth Solar Power 

Co., 839 F.3d 1179, 1181 (9th Cir. 2016) (en banc) (“We 

agree with the majority of our sister circuits and conclude 

that Octane Fitness and Highmark have altered the 

analysis of fee applications under the Lanham Act. . . . 

Pursuant to Highmark, our review of the district court’s 

decision on fees awarded under the Lanham Act is for 

abuse of discretion.”).

On appeal, Milo & Gabby argues that the district 

court erred in its analysis of the patent infringement, 

copyright infringement, and trademark infringement 

issues. Milo & Gabby also argues that the district court 

abused its discretion in awarding attorney’s fees to Amazon. Although Milo & Gabby’s notice of appeal identifies 

twelve separate decisions by the district court that form 

the basis of this appeal, J.A. 1–3, its opening brief does 

not identify which of its arguments applies to which 

decision below and does not articulate the appropriate 

standard of review or the legal framework for each claim 

on appeal. “It is well established that arguments that are 

not appropriately developed in a party’s briefing may be 

deemed waived.” United States v. Great Am. Ins. Co., 738 
MILO & GABBY LLC v. AMAZON.COM, INC. 9

F.3d 1320, 1328 (Fed. Cir. 2013) (citation omitted); see 

also Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) 

(finding waiver when “counsel has made no attempt to 

address the issue” because “[t]he premise of our adversarial system is that appellate courts do not sit as selfdirected boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued 

by the parties before them”). Nevertheless, we consider 

each of these issues in turn.

A. Patent Infringement Claim

On appeal, Milo & Gabby does not argue that Amazon 

is liable for patent infringement based on an “offer to sell” 

theory of infringement, which is the theory that it presented to the district court, both at the summary judgment stage and at trial. Instead, Milo & Gabby argues 

that the district court dismissed the patent infringement 

claim “based on its erroneous conclusion that Amazon is 

not a ‘seller’ of the accused products.” Appellants’ Br. 29. 

In making this argument, Milo & Gabby relies on its

general contention that Amazon is a “seller” of the knockoff pillowcases. 

Milo & Gabby’s reliance on a “seller” theory of liability 

ignores both the procedural history of this case and its 

own abandonment of the theory. Although Milo & Gabby 

alleged in its complaint that Amazon “sold” the products

it accused of violating its design patents, Milo & Gabby 

abandoned that argument at summary judgment. In 

response to Amazon’s motion for summary judgment on 

patent infringement, in which Amazon argued that it had 

not “sold” or “offered to sell” the accused products, J.A. 

455–56, Milo & Gabby responded by arguing only that 

Amazon offered to sell the products, J.A. 594–97. Summary Judgment Order, 2015 U.S. Dist. LEXIS 92890, at 

*33.

“It is a general rule that a party cannot revisit theories that it raises but abandons at summary judgment.” 
10 MILO & GABBY LLC v. AMAZON.COM, INC. 

USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276, 

1284 (9th Cir. 1994) (collecting cases)3; see also Diversey 

Lever, Inc. v. Ecolab, Inc., 191 F.3d 1350, 1352 (Fed. Cir. 

1999) (concluding that a party’s failure to raise an affirmative defense in opposition to a motion for summary 

judgment “constituted an abandonment of the defense”); 

Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 182 F.3d 

888, 892 (Fed. Cir. 1999) (noting that the Eleventh Circuit 

“understandably concluded that the district court properly 

treated the plaintiff’s alter ego theory ‘as abandoned’ and 

that the theory was ‘no longer an issue in [the] case,’” 

when the defendant had moved for summary judgment on 

that theory and the plaintiff failed to address it in opposing the motion). “A party abandons an issue when it has 

a full and fair opportunity to ventilate its views with 

respect to an issue and instead chooses a position that 

removes the issue from the case.” BankAmerica Pension 

3 See, e.g., Vaughner v. Pulito, 804 F.2d 873, 877 n.2 

(5th Cir. 1986) (refusing to consider an Unfair Trade 

Practices and Consumer Protection claim because the 

party had failed to assert it as a basis for opposing a 

motion for summary judgment, and “[i]f a party fails to 

assert a legal reason why summary judgment should not 

be granted, that ground is waived and cannot be considered or raised on appeal”); Liberles v. Cty. of Cook, 709 

F.2d 1122, 1126 (7th Cir. 1983) (“It is a well-settled rule 

that a party opposing a summary judgment motion must 

inform the trial judge of the reasons, legal or factual, why 

summary judgment should not be entered.”); Edward B. 

Marks Music Corp. v. Cont’l Record Co., 222 F.2d 488, 492 

(2d Cir. 1955) (“But a plaintiff in his opposition to a 

motion for summary judgment cannot abandon an issue 

and then, after an unpalatable decision by the trial judge, 

on appeal, by drawing on the pleadings resurrect the 

abandoned issue.”).

 
MILO & GABBY LLC v. AMAZON.COM, INC. 11

Plan v. McMath, 206 F.3d 821, 826 (9th Cir. 2000) (citing 

USA Petroleum, 13 F.3d at 1282).

Here, Milo & Gabby had a full and fair opportunity to 

oppose Amazon’s motion for summary judgment based on 

the “seller” theory it had referenced in its complaint. Milo 

& Gabby instead focused entirely on its “offer to sell” 

theory in its response. Milo & Gabby’s failure to raise the 

“seller” theory under 35 U.S.C. § 271 (2012) in response to 

Amazon’s motion for summary judgment on that exact 

issue constituted abandonment of the theory. See USA 

Petroleum, 13 F.3d at 1284. Milo & Gabby cannot raise 

the issue anew on appeal now that it has lost at trial on 

the “offer to sell” theory.

Because Milo & Gabby does not argue in this appeal 

that Amazon is liable for patent infringement based on 

the “offer to sell” theory similar to that addressed at trial, 

or even anything resembling such a theory, Milo & Gabby 

now has waived any argument as to its “offer to sell” 

theory of patent infringement. We therefore affirm the 

district court’s judgment in favor of Amazon on the patent 

infringement claims because Milo & Gabby has failed to 

preserve either a “seller” or “offer to sell” argument for 

our consideration in this case. Milo & Gabby also did not 

appeal any claim regarding contributory or induced 

infringement, and did not assert a claim for joint infringement.

B. Copyright Infringement Claim

Milo & Gabby argues that the district court erred 

when it found Amazon not liable for copyright infringement because, in its view, Amazon is liable under 17 

U.S.C. § 106 (2012) as both (1) a “seller” of the accused 

products, and (2) a “distributor” of the accused products. 

We consider each of these in turn.
12 MILO & GABBY LLC v. AMAZON.COM, INC. 

1. Milo & Gabby’s “Seller” Liability Theory 

As Amazon points out, one is not liable for copyright 

infringement unless it distributes copies of the copyrighted work “to the public . . . by sale or other transfer of 

ownership.” 17 U.S.C. § 106(3). Milo & Gabby contends 

that the district court erred in granting summary judgment to Amazon because Amazon did sell its copyrighted 

products to the public, or there is at least a material issue 

of fact regarding that question to prohibit judgment as a 

matter of law. Milo & Gabby asserts that the term “sale” 

under § 106(3) of the Copyright Act should be given the 

same meaning we give the term “sale” under the Patent 

Act, 35 U.S.C. § 271. Oral Arg. at 41:50–43:25, available 

at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=

2016-1290.mp3 (“[O]ur position all along . . . is that ‘sale’ 

is given its ordinary meaning . . . . Whether we are talking about copyright law, . . . whether we are talking about 

271(a), generally ‘sale’ is the same.”). Amazon does not 

dispute that the two concepts are the same. Indeed, 

neither party even cites to case law—from the Ninth 

Circuit or otherwise—discussing the meaning of the term 

“sale” in § 106(3) of the Copyright Act, relying instead on 

our case law under § 271. We agree that there are clear 

parallels between the legal standards, with one caveat 

noted below.

Milo & Gabby argues that the district court erred by 

focusing on whether Amazon ever takes legal title to the 

products sold on its website in ruling that Amazon is not a 

seller of the accused products. According to Milo & Gabby, there are “numerous circumstances” in which a party 

can be considered a seller of a product without taking 

legal title to the product. Appellants’ Br. 24. In support 

of its assertion, Milo & Gabby points to various sections of 

the Uniform Commercial Code (“U.C.C.”), including §§ 9-

319, 2-707A, and 2-326. Milo & Gabby also attempts to 

find support in the Supreme Court’s decisions in Pinter v. 

Dahl, 486 U.S. 622, 642–43 (1988), and Falk v. Brennan, 
MILO & GABBY LLC v. AMAZON.COM, INC. 13

414 U.S. 190, 199 (1973), and our decision in North American Philips Corp. v. American Vending Sales, Inc., 35 

F.3d 1576, 1579–80 (Fed. Cir. 1994).

We conclude that Milo & Gabby has failed to show 

that Amazon was a “seller” under 17 U.S.C. § 106 based 

on its actions in this case. Turning to our case law as the 

parties urge that we do, we have considered the ordinary 

meaning of “sale” when addressing the term under § 271

and related patent-law provisions. See, e.g., NTP, Inc. v. 

Research in Motion, Ltd., 418 F.3d 1282, 1319 (Fed. Cir. 

2005). We have determined the ordinary meaning of 

“sale” by looking to dictionaries and the U.C.C. as persuasive authority. See, e.g., id.; Halo Elecs., Inc. v. Pulse 

Elecs., Inc., 769 F.3d 1371, 1379 (Fed. Cir. 2014), vacated 

on other grounds, 136 S. Ct. 1923 (2016); cf. Enercon 

GmbH v. Int’l Trade Comm’n, 151 F.3d 1376, 1382 (Fed. 

Cir. 1998) (considering the plain meaning of “sale” when 

considering the use of the term in 19 U.S.C. § 1337). 

Section 2-106 of the U.C.C. defines a “sale” as consisting 

of “passing of title from the seller to the buyer for a price.” 

U.C.C. § 2-106(1). Section 2-103 defines “seller” as “a 

person who sells or contracts to sell goods.” U.C.C. § 2-

103(1)(d). After considering dictionary definitions from 

Black’s Law Dictionary and Webster’s Dictionary, we also 

have explained that “the common[] or usual meaning of 

the term sale includes those situations in which a contract 

has been made between two parties who agree to transfer 

title and possession of specific property for a price.” 

Enercon, 151 F.3d at 1382; see also NTP, 418 F.3d at 1319 

(considering the definition of “sale” in Black’s Law Dictionary and concluding that “the ordinary meaning of a 

sale includes the concept of a transfer of title or proper-
14 MILO & GABBY LLC v. AMAZON.COM, INC. 

ty.”).4 While we have made clear that our reference to the 

U.C.C. is a guide only and have explained that, at least in 

the context of the term “sale” under 35 U.S.C. § 102(b), 

passage of title is not of “talismanic” significance, we have 

found the presence or absence of passage of title to be a 

significant indicator of whether a sale has occurred in the 

patent law context. See Medicines Co. v. Hospira, Inc., 

827 F.3d 1363, 1375–76 (Fed. Cir. 2016).

Milo & Gabby concedes that, if direct passage of title 

from Amazon to the purchasers of the “Cozy Companion” 

knockoffs is a predicate to Amazon’s liability, then, in 

most instances, Amazon would not qualify as a seller. 

But Milo & Gabby points to the one entity—FAC System—that used the Fulfillment by Amazon service and 

argues that Amazon is a seller in that circumstance. Milo 

& Gabby also argues that the U.C.C. recognizes that sales 

can occur in some instances where the seller does not hold 

title. 

Turning first to FAC System’s use of Amazon’s fulfillment service, we see no difference in Amazon’s status

in that context. Though FAC System shipped its product 

to an Amazon warehouse for storage and Amazon boxed 

up and shipped the product when a sale was consummated on the website, Amazon never held title to the accused 

products. See J.A. 2163–64. Amazon therefore could not 

sell the product on its own, even if done on behalf of the 

third-party seller. J.A. 2164. The third-party seller also 

could request that Amazon return the product to the 

third-party seller at any time. J.A. 2163.

Amazon, moreover, did not control what information 

or pictures were put on the product-detail page, nor did it 

4 Black’s Law Dictionary defines “sale” as “[t]he 

transfer of property or title for a price.” Black’s Law 

Dictionary (10th ed. 2014).

 
MILO & GABBY LLC v. AMAZON.COM, INC. 15

control the price for which the product was sold. See J.A. 

2136–46; J.A. 2159–61. FAC System, or other third-party 

sellers as applicable to their products, controlled these 

details at all times. See id. Amazon, therefore, was not 

responsible for the actual listing of the product for sale, 

consummating the sale, or transferring title. Instead, 

Amazon merely provided an online marketplace that 

third-party sellers could use to sell their products and 

then, in some instances when the third-party sellers used 

the additional Amazon services, shipped the products to 

the final destination. Thus, while Amazon’s services 

made it easier for third parties to consummate a sale, the 

third parties remained the sellers. Because they are not 

before us, we do not consider questions of joint infringement, contributory infringement, or induced infringement.

Milo & Gabby next points out that the general rule 

that a “sale” involves the transfer of title has some exceptions. And, as we said in Medicines, the transfer of title

does not have “talismanic significance” when determining 

whether a sale has occurred. Id. at 1376. We are unpersuaded, however, that our general insistence on transfer 

of title should be abandoned in the circumstances presented here.

Although Milo & Gabby identifies some situations in 

which a court might consider a party to be a seller even 

when it does not hold and transfer title to another party, 

Milo & Gabby has failed to show that any of the situations 

it identifies applies to Amazon. The U.C.C. sections 

addressed by Milo & Gabby do not address the circumstances at issue here. Milo & Gabby’s argument that 

Amazon is engaged in consignment sales under § 9-319 of 

the U.C.C. fails on its face. Section 9-102 defines “consignment” as follows: 

“Consignment” means a transaction, regardless of its form, in which a person delivers 
16 MILO & GABBY LLC v. AMAZON.COM, INC. 

goods to a merchant for the purpose of sale 

and:

(A) the merchant:

(i) deals in goods of that kind under a name other than the name of 

the person making delivery;

(ii) is not an auctioneer; and

(iii) is not generally known by its 

creditors to be substantially engaged in selling the goods of others;

(B) with respect to each delivery, the aggregate value of the goods is $ 1,000 or 

more at the time of delivery;

(C) the goods are not consumer goods 

immediately before delivery; and

(D) the transaction does not create a security interest that secures an obligation.

U.C.C. § 9-102(20). Although § 9-319 would only apply if 

Amazon had a consignment relationship with the thirdparty sellers that meets the definition of § 9-102(20), Milo 

& Gabby does not explain how Amazon’s actions meet 

that definition. Instead, Milo & Gabby merely asserts 

that the “sales by Amazon of the accused products are 

essentially consignment sales.” Appellants’ Br. 25.

Even Amazon’s connection with FAC System through

the Fulfillment by Amazon relationship has not been 

shown to meet the definition of a consignment sale. 

Among other possible reasons: (1) FAC System did not 

deliver the products to Amazon “for the purpose of sale” 

but instead for the purpose of logistics and shipping after 

a sale had been made through the website; and (2) there 

is no allegation that the aggregate value of the products
MILO & GABBY LLC v. AMAZON.COM, INC. 17

would have been $1,000 or more at the time of delivery. 

The commentary for this section also notes that an intermediary company shipping the products, as Amazon did

here, would not be involved in a consignment agreement. 

U.C.C. § 9-102 cmt. 14. Section 9-319 simply does not 

apply to this case.

Milo & Gabby’s citation to Falk to suggest that a consignee stands in the shoes of a seller is inapposite. At 

most, the case shows that, in some situations, a consignee 

might be considered to be in the same position as a seller

who purchases the product before resale. See Falk, 414 

U.S. at 199. But this reasoning would only apply if Milo 

& Gabby could show that Amazon has a consignment 

agreement with the relevant third-party seller. Milo & 

Gabby has not done that. 

Milo & Gabby’s reliance on U.C.C. § 2-707 is similarly 

unpersuasive. Section 2-707 states that a person in the 

position of a seller includes “as against a principal an 

agent who has paid or become responsible for the price of 

goods on behalf of his principal or anyone who otherwise 

holds a security interest or other right in goods similar to 

that of a seller.” U.C.C. § 2-707. As Anderson on the 

U.C.C. explains, the purpose of § 2-707 is to “extend[] to 

persons regarded as being in the position of the seller 

certain of the remedies available to the seller. However, 

U.C.C. § 2-707 does not create an additional class of 

defendants who may be held liable to the buyer for breach 

of the sales contract.” 4A Anderson U.C.C. § 2-707:3 (3d 

ed.); see also Hart Honey Co. v. Cudworth, 446 N.W.2d 

742, 744 (N.D. 1989) (“The statute does not create an 

additional category of ‘sellers’ who will be liable to the 

buyer upon breach of the contract.”). Milo & Gabby

cannot use this section as a sword to expand Amazon’s 

liability. 

Milo & Gabby’s final U.C.C. argument under § 2-326

is also unavailing. As an initial matter, Milo & Gabby 
18 MILO & GABBY LLC v. AMAZON.COM, INC. 

never raised § 2-326 before the district court as a basis for 

arguing that Amazon was a seller of the pillowcases. See

J.A. 596–97 (raising arguments as to §§ 2-707 and 9-319 

but never mentioning § 2-326). Because Milo & Gabby

raised this issue for the first time on appeal, we treat this 

issue as waived. See Hillis v. Heineman, 626 F.3d 1014, 

1019 (9th Cir. 2010) (citing Conn. Gen. Life Ins. Co. v. 

New Images of Beverly Hills, 321 F.3d 878 (9th Cir. 2003))

(“These arguments are raised for the first time on appeal, 

and because they were never argued before the district 

court, we deem them waived.”).

Even if Milo & Gabby had not waived its argument, 

U.C.C. § 2-326 does not apply to this case. Section 2-326 

involves, inter alia, “sale or return” transactions. Under 

this type of transaction, goods that a buyer obtains primarily for resale may be returned by the buyer to the 

seller even though they conform to the contract. U.C.C. 

§ 2-326(1)(b). The official comments for this section make 

clear that a sale or return “is a present sale of goods 

which may be undone at the buyer’s option.” U.C.C. § 2-

326 n.1; see also Paramount Pictures Corp. v. Carol Publ’g 

Grp., 25 F. Supp. 2d 372, 375 (S.D.N.Y. 1998) (“[A]lthough 

a buyer retains the right to return goods, a completed sale 

is generally deemed to have taken place and title passes 

to the buyer.”). Even though a sale takes place between 

the buyer and the seller, the seller agrees “to take back 

the goods (or any commercial unit of goods) in lieu of 

payment if they fail to be resold.” U.C.C. § 2-326 n.1. 

This definition does not match the relationship between 

Amazon and the third-party sellers here because, among 

other possible reasons: (1) there is no sale of the pillowcases from the third-party sellers to Amazon, and 

(2) there is no evidence that Amazon received the pillowcases with the underlying understanding that the thirdparty sellers would take the products back if the products

failed to sell.
MILO & GABBY LLC v. AMAZON.COM, INC. 19

The U.C.C. sections Milo & Gabby cite provide no reason for us to stray from the general U.C.C. definition that 

a party must transfer title in a product to a buyer in order 

to be considered a seller. Although Milo & Gabby has 

shown that a party might be considered a seller or in the 

same position as a seller under some circumstances even 

when not transferring title, Milo & Gabby has failed to 

show that any of those circumstances applies to this case.

Milo & Gabby’s reliance on Pinter and North American Philips does not change the analysis. In Pinter, the 

Supreme Court noted that a party not holding title in a 

security could be liable as a seller or offeror of unregistered securities under the Securities Act of 1933, Pub. L. 

No. 73-22, 48 Stat. 74. See Pinter, 486 U.S. at 642–47. 

From this analysis, Milo & Gabby pulls a single sentence

to support its position: “In common parlance, a person 

may offer or sell property without necessarily being the 

person who transfers title to, or other interest in, that 

property.” Id. at 642–43. This single sentence does not 

help Milo & Gabby. Putting aside the fact that the Court 

was considering an entirely different statutory scheme 

and was seeking to elicit Congressional intent with respect to that particular scheme, Milo & Gabby ignores 

what else the Court said in Pinter. First, the Court noted 

that the buyer-seller relationship in “traditional contractual privity” generally involves passing “title, or other 

interest in the security, to the buyer for value.” Id. at 

642. 

Second, the Court said that the circumstances where 

a person without title can be a seller or offeror under the 

Securities Act are those where the person’s actions are 

motivated by a desire to further his own financial interests—such as by receipt of a share of the profits from a 

sale—or those of the seller, rather than a desire to aid the 

buyer in consummating his desired purchases. In this 

context, the Court made two additional points: (1) being a 

substantial factor in the sale of unregistered securities is 
20 MILO & GABBY LLC v. AMAZON.COM, INC. 

not sufficient to render a defendant liable as a seller, and 

(2) the Securities Act does not impose liability on participants whose actions are collateral to the sales transaction. Milo & Gabby has not alleged that Amazon receives 

profits from the sale of the pillowcases or that its motivations were anything other than creating a platform for the 

benefit of both purchasers and owners to consummate 

their own deals. Based on Milo & Gabby’s own allegations, Amazon’s activities are more closely characterized 

as collateral to the sale itself.

North American Philips is likewise unhelpful for Milo 

& Gabby. Again, Milo & Gabby latches onto a single 

sentence to argue that we have previously addressed and 

determined that passing title “has very little to do with 

the tortious act of infringement.” Appellants’ Br. 24. But 

Milo & Gabby takes our statement—“Appellees have 

pointed to no policy that would be furthered by according 

controlling significance to the passage of legal title here,” 

N. Am. Philips, 35 F.3d at 1579–80—entirely out of 

context. The quoted portion of the case merely addresses 

the effect of actions taken by the parties on the court’s 

analysis as to whether it has personal jurisdiction over 

the parties. Id. One party in the case had argued for a 

test that restricted the location of an infringing act based 

on the sale of a product to the location where legal title 

passes from seller to buyer. Id. The court explained that 

the party had “failed to explain why the criterion should 

be the place where legal title passes rather than the more 

familiar places of contracting and performance.” Id. at 

1579. The court’s clarification as to location of infringement for personal jurisdiction purposes has no relevance 

to whether a party that does not hold or pass title can be 

considered a seller.

To the extent, moreover, that we have been willing to 

find that a sale has occurred for some instances under the 

Patent Act where title has not transferred, Milo & Gabby 

has given us no reason to believe we should do the same 
MILO & GABBY LLC v. AMAZON.COM, INC. 21

under the Copyright Act. While, given the absence of 

briefing on the topic, we do not purport to define the 

precise contours of 17 U.S.C. § 106(3), the term “sale” 

under § 106(3) appears to unequivocally require a transfer 

of ownership from the seller to the buyer. Grammatically, 

the text combines the term “sale” with “other transfer of 

ownership” between commas, indicating that the latter 

phrase modifies the term “sale.”

The House Report to § 106 confirms this straightforward reading of § 106(3). H.R. Rep. No. 94-1476, at 62

(1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5676 (“As 

section 109 makes clear, however, the copyright owner’s 

rights under section 106(3) cease with respect to a particular copy or phonorecord once he has parted with ownership of it.” (emphasis added)). Treatises discussing the 

concept of sale under § 106(3) and the accompanying first 

sale doctrine under § 109 of the Copyright Act are to the 

same effect. In describing the first sale doctrine, Nimmer 

on Copyright states:

In its core situation, Section 109(a) provides 

that the distribution right may be exercised 

solely with respect to the initial disposition of 

copies of a work, not to prevent or restrict the 

resale or other further transfer of possession 

of those copies. More colloquially, once the 

copyright owner first sells a copy of the work, 

his right to control its further distribution is 

exhausted. Moreover, although the initial 

disposition of that copy may be a sale, the 

identical legal conclusion applies to a gift or 

any other transfer of title in the copy. Therefore, the more accurate terminology would not 

be “first sale” but rather “first authorized disposition by which title passes.”

2 Nimmer on Copyright § 8.12 (2017) (footnotes omitted). 

As is case law. See, e.g., UMG Recordings, Inc. v. Augus-
22 MILO & GABBY LLC v. AMAZON.COM, INC. 

to, 628 F.3d 1175 (9th Cir. 2011) (focusing entire analysis 

of whether a first sale had occurred on the question of 

whether title was transferred in some way from the 

copyright owner to a third party). Thus, while we might 

view § 106(3) differently in different circumstances and 

upon further inquiry, we will not today depart from an 

insistence that Milo & Gabby show that Amazon obtained 

title to the goods at issue and transferred that title to the 

third-party purchasers before we will find Amazon liable 

as a seller of the copyrighted goods.

For all these reasons, we find that Milo & Gabby has 

failed to provide us any reason to find that Amazon is a 

seller of the pillowcases at issue. Because the third-party 

sellers retain title to the pillowcases at all times and 

Amazon, as relevant to this case, merely provides an 

online marketplace followed by logistical and shipping 

services after the third-party seller has completed its 

transaction with a buyer, Amazon is not a seller in this 

case for the purposes of copyright infringement under 17 

U.S.C. § 106.

2. Milo & Gabby’s “Distributor” Liability Theory 

Milo & Gabby next contends that, “regardless of 

whether or not Amazon acts as a ‘seller’ (it does), there is 

no dispute that Amazon is liable for copyright infringement because it acts as a distributor of the infringing 

products and physical images.” Appellants’ Br. 31. Milo 

& Gabby asserts that the Fulfillment by Amazon service

constitutes infringement of its exclusive right to distribute copies of the copyrighted work by “sale” or “other 

transfer of ownership” under 17 U.S.C. § 106(3). As 

addressed above, Milo & Gabby has failed to show that 

the Fulfillment by Amazon service constitutes a “sale” of 

the accused products in this case. Its “distributor” theory, 

therefore, depends on its argument that Amazon’s actions 

meet the “other transfer of ownership” aspect of the 

statute and that such transfers need not include the 
MILO & GABBY LLC v. AMAZON.COM, INC. 23

passage of title by the party allegedly effectuating the 

transfer. 

After discussing alleged admissions by Amazon that it 

shipped the accused products for FAC System, the only 

third-party seller to use the Fulfillment by Amazon 

service, Milo & Gabby includes a single sentence addressing “other transfer of ownership” in its opening brief. 

Milo & Gabby states, “[a]lternatively, the transactions 

performed by Amazon easily constitute an ‘other transfer 

of ownership’ as contemplated under the Copyright Act.” 

Appellants’ Br. 34. In its initial brief, Milo & Gabby 

makes no attempt to explain what “other transfer of 

ownership” means, what constitutes an “other transfer of 

ownership,” or how and why Amazon’s conduct falls 

within the meaning of “other transfer of ownership.” Its

reply brief fares little better, as it only asserts that principles of statutory construction require that all clauses of 

a statute be given meaning and not rendered superfluous 

to the extent possible. Appellants’ Reply Br. 24–26. 

Using this premise, Milo & Gabby contends that “other 

transfer of ownership” must have a broader, or at least 

different, definition than “sale,” but Milo & Gabby still 

makes no attempt to give meaning to the clause.

Milo & Gabby’s conclusory and passing reference to 

“other transfer of ownership” in its opening brief does not 

amount to a substantive argument that brings the issue 

before the court. See SmithKline Beecham Corp. v. Apotex 

Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (collecting 

cases from the First, Second, Third, Sixth, and Seventh 

Circuits). Because our law is well established that an 

argument must be raised in a party’s opening brief and 

Milo & Gabby failed to raise this argument adequately in 

its opening brief, we consider this argument waived. See

id. at 1319–20.

We note, moreover, that, based on the authorities cited above, whatever the phrase “other transfer of owner-
24 MILO & GABBY LLC v. AMAZON.COM, INC. 

ship” might mean, it too would seem to require an actual 

transfer of title from the distributor to the recipient. See

2 Nimmer on Copyright § 8.12.

C. Palming Off Claim

In dismissing the false designation of origin claim 

brought under the Lanham Act, the district court noted 

that Milo & Gabby raised arguments regarding palming 

off violations for the first time in response to Amazon’s 

motion for summary judgment. Summary Judgment 

Order, 2015 U.S. Dist. LEXIS 92890, at *32. Federal Rule 

of Civil Procedure 8 requires a “short and plain statement 

of the claim showing that the pleader is entitled to relief.” 

Fed. R. Civ. P. 8(a)(2). The intent of this requirement is 

to “give the defendant fair notice of what the . . . claim is 

and the grounds upon which it rests.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. 

Gibson, 355 U.S. 41, 47 (1957)). 

Milo & Gabby argues that the district court erred in 

granting summary judgment on the palming off claim 

because the complaint contained sufficient factual allegations to put Amazon on notice of this claim. But Milo & 

Gabby never mentioned a palming off allegation or theory 

in its complaint. Indeed, Paragraph 36 of the complaint

specifies that Milo & Gabby asserted their Lanham Act 

claim as a false designation of origin claim, not as a 

palming off claim. J.A. 157. A false designation of origin 

claim is broader than a palming off claim. See Summit 

Mach. Tool Mfg. Corp. v. Victor CNC Sys., 7 F.3d 1434, 

1437 (9th Cir. 1993) (“[T]he Lanham Act has progressed 

far beyond the old concept of fraudulent passing off, to 

encompass any form of competition or selling which 

contravenes society’s current concepts of ‘fairness.’” (internal quotation marks omitted) (quoting Smith v. Montoro, 648 F.2d 602, 604 (9th Cir. 1981)). Milo & Gabby’s 

broad allegations of confusion, mistake, and deception 

under the umbrella of a false designation of origin claim 
MILO & GABBY LLC v. AMAZON.COM, INC. 25

would not provide Amazon notice in the complaint that 

Milo & Gabby was pursuing a palming off claim.

Faced with the prospect that it did not adequately 

plead its palming off claim, Milo & Gabby attempts to 

save the claim by pointing to evidence outside the complaint. First, Milo & Gabby argues that it described its 

Washington state law unfair competition claim as a 

palming off claim in its opposition to Amazon’s motion to 

dismiss. It asserts that an unfair competition claim 

under Washington state law is “essentially the same 

cause of action” as a palming off claim under the Lanham 

Act, Appellants’ Br. 39, so it had “explicitly identified its 

legal theory based on [facts in the complaint] in its early 

pleading-stage filings,” Appellants’ Br. 41. Milo & Gabby 

also argues that Amazon understood that it faced a palming off claim based on a time entry made by Amazon’s 

counsel that came to light after the court awarded fees to 

Amazon. 

Milo & Gabby’s resort to sources outside the complaint does not meet Milo & Gabby’s legal requirement 

under Rule 8. The complaint, as opposed to some other 

brief or court filing, must be the document to contain the 

plain statement of the claim. See, e.g., ABB Turbo Sys. 

AG v. TurboUSA, Inc., 774 F.3d 979, 984 (Fed. Cir. 2014) 

(“Rule 8(a)(2) requires . . . that the complaint give the 

defendant fair notice . . . .” (emphasis added) (internal 

quotation marks omitted) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007))). Milo & Gabby had 

to point to evidence in the complaint itself showing that it 

asserted a palming off theory under the Lanham Act. 

Because we conclude that the complaint’s general allegations regarding a false designation of origin claim did not 

put Amazon on notice of an intent to pursue a palming off 

claim, we affirm the district court’s dismissal of this

claim.

D. Attorney’s Fees
26 MILO & GABBY LLC v. AMAZON.COM, INC. 

Milo & Gabby argues that the court should overturn 

the district court’s award of attorney’s fees under the 

Lanham Act if it vacates the district court’s dismissal of 

the Lanham Act claim. According to Milo & Gabby, 

reinstatement of the claim would mean that Amazon 

would no longer be a “prevailing party” under the Lanham Act such that an award of attorney’s fees would be 

improper.

Because we find that the district court did not err in 

dismissing Milo & Gabby’s palming off claim and Milo & 

Gabby made no separate argument regarding the fee 

award, we affirm the district court’s award of attorney’s 

fees.5

IV. CONCLUSION

For the foregoing reasons, we affirm the district 

court’s judgment in this case.

AFFIRMED

5 Moreover, district court orders granting sanctions 

or attorney’s fees are “separate order[s] which [are] not 

final and appealable until the district court has decided 

the amount.” Orenshteyn v. Citrix Sys., Inc., 691 F.3d 

1356, 1358 (Fed. Cir. 2012) (citation omitted). Because 

the district court has not ruled on the amount of the fee 

award, see Milo & Gabby, LLC v. Amazon.com, Inc., No. 

C13-1932RSM, 2015 WL 11234165 (W.D. Wash. Oct. 5, 

2015), Milo & Gabby’s challenge to the award of attorney’s 

fees would be premature even if we were to find that the 

district court had erred in dismissing the Lanham Act 

claim.