FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IMPOSSIBLE FOODS INC., 

Plaintiff-Appellant, 

 v. 

IMPOSSIBLE X LLC, 

Defendant-Appellee.

No. 21-16977 

D.C. No.

5:21-cv-02419-

BLF 

OPINION

Appeal from the United States District Court

for the Northern District of California

Beth Labson Freeman, District Judge, Presiding

Argued and Submitted December 6, 2022

San Francisco, California

Filed September 12, 2023

Before: Carlos F. Lucero,* Daniel A. Bress, and Lawrence 

VanDyke, Circuit Judges.

Opinion by Judge Bress;

Dissent by Judge VanDyke

* The Honorable Carlos F. Lucero, United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

SUMMARY**

Personal Jurisdiction

The panel reversed the district court’s dismissal, for lack 

of personal jurisdiction, of a trademark declaratory judgment 

action brought against Impossible X, LLC, by Impossible 

Foods, Inc., a corporation that manufactures and markets 

plant-based meat substitutes, and remanded for the district 

court to consider the merits of Impossible Foods’ claims.

Impossible X, now a Texas LLC, is a one-person 

company run by Joel Runyon, a self-described “digital 

nomad” who for two years operated his business from San 

Diego. Impossible X sells apparel, nutritional supplements, 

diet guides, and a consulting service through its website and 

various social media channels. Impossible Foods sued 

Impossible X in federal court in California, seeking a 

declaration that Impossible Foods’ use of the IMPOSSIBLE 

mark did not infringe on Impossible X’s trademark rights.

The panel held that Impossible X was subject to specific 

personal jurisdiction in California because it previously 

operated out of California and built its brand and trademarks 

there, and its activities in California were sufficiently 

affiliated with the underlying trademark dispute to satisfy the 

requirements of due process. First, Impossible X 

purposefully directed its activities toward California and 

availed itself of the privileges of conducting activities there 

by building its brand and working to establish trademark 

rights there. Second, Impossible Foods’ declaratory 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 3

judgment action arose out of or related to Impossible X’s 

conduct in California because Impossible X’s trademark 

building activities formed the basis of the contested 

trademark rights. The panel did not confine its analysis to 

Impossible X’s trademark enforcement activities, but rather 

concluded that, to the extent the Federal Circuit follows such 

an approach for patent declaratory judgments, that approach 

is not justified in the trademark context. Third, the panel 

concluded that there was nothing unreasonable about 

requiring Impossible X to defend a lawsuit based on its 

trademark building activities in the state that was its 

headquarters and Runyon’s home base, and that continued to 

be a business destination for Runyon and Impossible X.

Dissenting, Judge VanDyke wrote that Impossible X was 

not subject to specific personal jurisdiction in California 

because Impossible Foods waived any argument that 

Impossible X’s brand-building activities create specific 

jurisdiction. Even ignoring wavier, Impossible X did not 

purposefully direct any trademark enforcement activity at 

California, and this declaratory judgment action did not arise 

out of or relate to Impossible X’s relevant activities in 

California.

COUNSEL

William H. Brewster (argued) and Theodore H. Davis, Jr., 

Kilpatrick Townsend & Stockton LLP, Atlanta, Georgia; 

Gia L. Cincone, Kilpatrick Townsend & Stockton LLP, San 

Francisco, California; for Plaintiff-Appellant.

Thomas M. Johnson, Jr. (argued), David E. Weslow, and 

Adrienne J. Kosak, Wiley Rein LLP, Washington, D.C.; 
4 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

Kevin K. Eng, Markun Zusman Freniere & Compton LLP, 

San Francisco, California; for Defendant-Appellee.

OPINION

BRESS, Circuit Judge:

We determine whether a California federal court in a

trademark declaratory judgment action has personal 

jurisdiction over a one-person company run by a selfdescribed “digital nomad” who for two years operated his 

business from San Diego. We hold that Impossible X, the 

declaratory judgment defendant, is subject to specific 

personal jurisdiction in California because it previously 

operated out of California and built its brand and trademarks 

there. Impossible X’s activities in the forum state are 

sufficiently affiliated with the underlying trademark dispute

to satisfy the requirements of due process. We reverse the 

district court’s dismissal of the plaintiff’s complaint.

I

A

Declaratory judgment plaintiff Impossible Foods, a 

Delaware corporation, manufactures and markets plantbased meat substitutes. This includes the “Impossible 

Burger,” which is sold in grocery stores and restaurants 

nationwide. Impossible Foods’ principal place of business 

is in Redwood City, California. Declaratory judgment 

defendant Impossible X, now a Texas LLC, sells apparel, 

nutritional supplements, diet guides, exercise plans, and 

consulting services through its website and various social 

media channels. Impossible X is solely owned and operated 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 5

by entrepreneur Joel Runyon, who currently resides in 

Austin, Texas. 

Impossible X and Impossible Foods use a similar allcaps version of the word “IMPOSSIBLE” to market their 

products. Both companies have federally registered 

trademarks for their versions of the IMPOSSIBLE mark. 

Runyon first used the mark on his personal fitness and 

lifestyle blog in 2010. The purpose of the blog was to 

encourage Runyon himself and others “to push ourselves to 

our limits and do something impossible.” In 2012, Runyon 

in his personal capacity registered the IMPOSSIBLE mark 

for use on a website featuring information on personal 

fitness and “adventure activities.” 

Shortly thereafter, Runyon turned his personal blog into 

a business, forming Impossible Ventures LLC as an Illinois

legal entity. Runyon changed the name of the LLC to 

Impossible X in 2016. Between 2014 and 2018, Impossible 

X obtained several additional trademark registrations related 

to the original IMPOSSIBLE mark, such as IMPOSSIBLE 

FITNESS and IMPOSSIBLE HQ. Impossible X uses these 

marks on numerous nationwide platforms, including several 

domain names, an Amazon e-commerce platform, and a 

YouTube channel. 

Though Impossible X ambitiously expanded its virtual 

footprint, it has fewer ties to the physical world. Impossible 

X has no employees or outside investors, has no 

manufacturing or production facilities, and does not itself

own or rent any office space. The company is, for all 

practical purposes, an extension of Joel Runyon, who claims 

to “handle[] business for Impossible LLC . . . remotely from 

wherever I happen[] to be.” 
6 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

As it happens, Runyon—who refers to himself as a

“digital nomad”—has worked from several places since he 

first registered the IMPOSSIBLE mark. While Runyon has 

traveled extensively, his ties to California are substantial, at 

least as related to the present dispute.

Although Runyon never registered Impossible X to do 

business in California, San Diego served as Impossible X’s 

de facto headquarters from 2014 to 2016. Runyon claims he 

split his time between San Diego and New York City during 

this period, but he also described San Diego as a “base 

point,” and his Impossible X business activities were clearly 

concentrated there. In these years, Runyon rented both an 

apartment and a workspace in San Diego from which he ran 

Impossible X. He did not rent workspace in New York or 

elsewhere. (Runyon’s primary reason for spending time in 

New York was due to a personal relationship.)

In social media posts from Impossible X accounts, 

Runyon referred to his San Diego workspace—a room he 

rented from the cross-fit gym where he worked out—as 

“impossiblehq” and “impossibleheadquarters.” Runyon

expressed excitement about “[s]etting up shop” there and 

“hav[ing] a dedicated spot for videos and writing.” In an

Instagram post, Runyon also described his gym-adjacent 

office as “[m]y new favorite place to work in San Diego,” 

telling his social media followers that he just had to “finish 

up putting @impossibleheadquarters branding on everything 

now.” Runyon’s LinkedIn profile listed “San Diego, 

California” as the “headquarters” for Impossible Ventures 

(later renamed Impossible X). In a blog post on an

Impossible website, Runyon promoted his San Diego office 

as a place where he could “build a team” and “do calls and 

do meetings.” 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 7

While living in San Diego, Runyon endeavored to build 

recognition for Impossible X. The record contains various 

marketing efforts and social media posts in which Runyon 

touted the Impossible brand, including through photos of 

himself wearing fitness gear with the Impossible mark. 

When promoting the Impossible X brand on social media, 

Runyon frequently tagged San Diego as his location. For 

example, in a June 2014 post from the “impossiblehq” 

Instagram handle, Runyon promoted his new Impossible X 

fitness gear, adding hashtags for #sandiego and #sd. And in

January 2015, Runyon posted to Twitter that he “[c]ame 

home to San Diego and found my brand new #impossible 

hoodie waiting for me.” Runyon also promoted Impossible 

X in a segment on the local news. In an Instagram post, 

Runyon featured a screenshot of himself (clad in an 

Impossible X t-shirt) being interviewed under the storyline 

“New Local App Aims to Relieve Sitting Pain,” adding

hashtags for “#sd” and “#sandiego.” 

While operating out of his base in California, Runyon

also leveraged the Impossible X brand to promote various 

“paleo” diet and recipe guides. For example, in a June 2015

blog post from an Impossible X website, he mentioned that 

he was “starting to build a team both at Impossible and on 

Ultimate Paleo Guide.” In another post, Runyon referenced

a “workshop on the paleo projects that I’ve been building 

over the past couple years.” Later, Runyon used the 

Impossible brand in connection with his “Paleo.io” and 

“Paleo Recipe Pro” software applications.

In June 2016, Runyon left his “base point” in San Diego 

and started living a fully nomadic lifestyle. Although 

Runyon had rented the gym office in his own name, in his 

letter to his landlord giving notice of vacating the lease, he 

signed it “Joel Runyon[,] Impossible X LLC.” For the next 
8 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

two years, Runyon ran his business remotely as he traveled 

and worked in Europe and elsewhere. 

In January 2019, Runyon settled in Austin, Texas. Two 

years later, he formed Impossible LLC in Texas and merged 

his Illinois LLC into it. He also assigned the Impossible

trademark registrations to the new Texas entity. In social 

media posts, Runyon would later reflect that San Diego was 

the “nicest place,” but that it was “tougher to grow business 

there.” As Runyon would post in August 2019, “san diego 

is great, but taxes . better entrepreneur community in 

austin.” 

Though Runyon moved out of California in 2016, he still 

had frequent business-related contacts with the state. 

Runyon in February 2017 described his “homebase” as 

“socal-ish (San diego) and NYC usually. couple years back 

was Chicago.” As indicated by social media posts (some 

from Impossible-branded accounts) and flight records, 

Runyon made at least eight trips to California between 

October 2017 and December 2019. Runyon describes these

trips as personal in nature, although he would still perform 

Impossible X-related work while on the road. And, as 

recently as 2021, Impossible X made plans with a Los 

Angeles-based company to manufacture apparel using the 

IMPOSSIBLE mark. 

When Runyon returned to California in the years after he 

left, he continued to promote the Impossible brand in 

connection with California. In 2018, Runyon’s personal 

Instagram account and the @impossiblehq account shared 

several posts tagged with California locations that advertised 

Impossible X content and products. For example, in August 

2018, Runyon tweeted asking “[w]ho in the San 

Diego/Encinitas area” he should host on his Impossible X 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 9

podcast. In November 2018, the Impossible X Twitter 

account promoted an interview that Runyon recorded with 

an athlete in West Hollywood. In 2018 and 2019, Impossible 

X posted to Instagram photos of athletes wearing

Impossible-branded shirts at iconic locations in California, 

such as near the Golden Gate Bridge. Cumulatively, Runyon 

spent at least two months in San Diego in 2018 alone. 

B

The trademark dispute between Impossible Foods and 

Impossible X began in the summer of 2020 when the U.S. 

Patent and Trademark Office (USPTO) published for 

opposition three trademark applications filed by Impossible 

Foods. On November 10, 2020, Impossible X sent a letter 

to Impossible Foods demanding that Impossible Foods cease 

using its “confusingly similar IMPOSSIBLE designs . . . and 

limit the use of its IMPOSSIBLE mark to only use in 

association with plant-based food substitutes.” 

On November 25, 2020, Impossible X filed a notice of 

opposition before the USPTO Trademark Trial and Appeal 

Board (TTAB) for one of Impossible Foods’ trademark 

applications. In this opposition, which we discuss further 

below, Impossible X opposed Impossible Foods’ intent to 

use the IMPOSSIBLE mark in connection with “recipes, 

ingredients and cooking information.” In March 2021, with 

the TTAB proceedings ongoing, Impossible Foods proposed 

a settlement agreement, but Impossible X declined it. 

In April 2021, Impossible Foods went on the offensive, 

filing this declaratory judgment action in federal court in

California. In its complaint, Impossible Foods sought a 

declaration that its use of the IMPOSSIBLE mark did not 

infringe on Impossible X’s trademark rights, and that the 

Impossible Foods’ rights to the mark were superior. The 
10 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

TTAB proceedings were stayed pending resolution of this 

lawsuit. Following jurisdictional discovery, the district 

court dismissed the case for lack of personal jurisdiction. 

In a thoughtful opinion, the district court acknowledged

that the personal jurisdiction question was “a close one.” 

The court first concluded that Impossible X had purposefully 

directed relevant business activities at California, finding 

that Impossible X “did begin ‘building’ and marketing its 

meal and nutrition business . . . in San Diego in 2014 and 

using its name in that context.” The district court also 

acknowledged Impossible X’s other “intentional conduct” 

directed at California, including Impossible X’s use of San 

Diego office space and its business relationships with 

California companies. 

Though the district court found that Impossible Foods 

satisfied the “purposeful direction or availment” 

requirement, it reasoned that Impossible Foods’ declaratory 

judgment action did not arise out of or relate to Impossible 

X’s contacts with California. According to the district court, 

that was because, per its trademark registrations, Impossible 

Foods did not begin to use its mark in commerce until June 

2016, by which point Runyon had already left San Diego. In 

the district court’s view, because the parties had a live 

dispute only as of June 2016, Impossible X’s contacts with 

California prior to that time were irrelevant to personal 

jurisdiction. 

Impossible Foods timely appeals. We have jurisdiction 

under 28 U.S.C. § 1291. We review de novo the district 

court’s dismissal for lack of personal jurisdiction. Ayla, LLC 

v. Alya Skin Pty. Ltd., 11 F.4th 972, 978 (9th Cir. 2021).
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 11

II

In exercising personal jurisdiction, a federal district court 

is constrained by the Fourteenth Amendment’s Due Process 

Clause and the long-arm statute of the state in which it sits. 

See Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 

S. Ct. 1017, 1024 (2021); Burri L. PA v. Skurla, 35 F.4th 

1207, 1212 (9th Cir. 2022). The Due Process Clause permits 

the exercise of personal jurisdiction if the defendant has 

sufficient “minimum contacts” with the forum state “such 

that the maintenance of the suit does not offend traditional 

notions of fair play and substantial justice.” LNS Enters.

LLC v. Cont’l Motors, Inc., 22 F.4th 852, 858 (9th Cir. 2022) 

(quoting Walden v. Fiore, 571 U.S. 277, 283 (2014)); see 

also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316–17 

(1945). Because California courts may exercise jurisdiction 

on any basis not inconsistent with due process, Cal. Civ. 

Proc. Code § 410.10, the jurisdictional analysis in this case 

is the same under state and federal law. See Yahoo! Inc. v. 

La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 

1199, 1205 (9th Cir. 2006) (en banc) (per curiam). 

Personal jurisdiction can be either general or specific. A 

court may exercise general jurisdiction “only when a 

defendant is ‘essentially at home’ in the State.” Ford Motor

Co., 141 S. Ct. at 1024 (quoting Goodyear Dunlop Tires 

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). For

a corporate defendant, general jurisdiction is

paradigmatically appropriate in the state in which the entity

is incorporated or where it maintains its principal place of 

business. See Daimler AG v. Bauman, 571 U.S. 117, 137 

(2014). Impossible X is not registered as a California LLC, 

does not currently maintain its principal place of business in 

California, and at least as of now is not otherwise “at home” 

there. Goodyear, 564 U.S. at 919. Impossible Foods thus 
12 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

does not argue that Impossible X is subject to general 

jurisdiction in California.

Specific jurisdiction “covers defendants less intimately 

connected with a State, but only as to a narrower class of 

claims.” Ford Motor Co., 141 S. Ct. at 1024. Distilling

Supreme Court precedent, we have articulated three 

requirements for establishing specific jurisdiction over a 

non-resident defendant: 

(1) the defendant must either purposefully 

direct his activities toward the forum or

purposefully avail himself of the privileges of 

conducting activities in the forum; (2) the 

claim must be one which arises out of or 

relates to the defendant’s forum-related 

activities; and (3) the exercise of jurisdiction 

must comport with fair play and substantial 

justice, i.e. it must be reasonable. 

Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 

1068 (9th Cir. 2017) (alterations and quotations omitted). 

Impossible Foods bears the burden on the first two prongs. 

Ayla, 11 F.4th at 979. If they are met, Impossible X then

“must come forward with a ‘compelling case’ that the 

exercise of jurisdiction would not be reasonable.” Id.

(quoting Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th 

Cir. 2008)).

We hold that Impossible X’s brand-building activities in 

California since 2014 are sufficiently related to the instant

trademark dispute to confer personal jurisdiction. 

Impossible X purposefully directed its activities toward

California and availed itself of the privileges of conducting 

activities there by building its brand and working to establish 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 13

trademark rights there. Impossible Foods’ declaratory 

judgment action “arises out of or relates to” Impossible X’s 

conduct in California because its trademark building 

activities form the basis of the contested trademark rights—

rights which Impossible X broadly asserted in the TTAB 

opposition that triggered this action. Finally, there is nothing 

unreasonable about requiring Impossible X to defend a 

lawsuit based on its trademark building activities in the state 

that was its “headquarters” and Runyon’s “home base,” and 

that continued to be a business destination for Runyon and 

Impossible X. Explaining each of these points requires some 

analysis, to which we now turn.

1

1

Impossible Foods did not waive its argument that Impossible X’s 

trademark building activities in California supply a basis for personal 

jurisdiction. The dissent belabors this point, but it is clearly wrong. 

In its opposition to Impossible X’s motion to dismiss, Impossible 

Foods argued that Impossible X’s California business activities were

relevant both to the “purposeful direction/availment” and the “arising out 

of / related to” prongs of the specific jurisdiction analysis. At the outset, 

Impossible Foods argued that Impossible X satisfied the “intentional act” 

requirement in “multiple ways,” including by sending a cease-and-desist 

letter but also by “engag[ing] in promotional, business development and 

sales activities using the IMPOSSIBLE mark from California.” Then, 

on the “express aiming” element of purposeful direction, Impossible 

Foods argued that Impossible X “operated its business and promoted its 

activities from and to California—intentional conduct that bears on the 

two elements of [Impossible X’s] infringement allegations, whether 

[Impossible X] has superior common-law rights and whether 

[Impossible Foods’] use of its IMPOSSIBLE mark is likely to cause 

confusion.” Lastly, and at the risk of repetition, Impossible Foods

argued that its declaratory judgment action arose in part out of

Impossible X’s “business interests in [California] that are tied to the 

underlying litigation threat,” and that Impossible X’s activities in 

California—such as Impossible X “‘building’ its meal and nutrition 
14 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

business” there—formed the “linchpin of its trademark allegations

against” Impossible Foods.

The dissent is thus quite plainly mistaken in claiming that “[i]n its 

opposition to Impossible X’s motion to dismiss, Impossible Foods 

identified only Impossible X’s trademark enforcement activities as 

relevant to the first two prongs” of the jurisdictional analysis. At the bare 

minimum, Impossible Foods is elaborating upon and prioritizing an 

argument based on trademark building that it raised below, which is 

permissible. See, e.g., Puerta v. United States, 121 F.3d 1338, 1341–42 

(9th Cir. 1997). Indeed, as we have held, “appellants can make any 

argument in support of their claim on appeal—they are ‘not limited to 

the precise arguments they made below.’” Allen v. Santa Clara Cnty. 

Corr. Peace Officers Ass’n, 38 F.4th 68, 71 (9th Cir. 2022) (citing Yee 

v. City of Escondido, 503 U.S. 519, 534 (1992)).

Regardless, the district court itself concluded that, although 

Impossible X’s “general business contacts” were “‘expressly aimed’ at 

California because they occurred there,” the declaratory judgment action 

nonetheless did not “arise[] out of” these activities (based on an 

erroneous timing theory that we address below in Part II.B.3). The 

dissent claims the district court discussed these points “only as an aside.” 

In fact, the district court spent several pages of analysis explaining why

Impossible X’s trademark building contacts were sufficient to establish 

purposeful direction/availment, yet insufficient to meet the “arising out 

of or relating to” requirement. Because the district court addressed the 

trademark building activities and treated them as an independent basis 

for personal jurisdiction, we will not find the argument waived. See 

Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir. 2007) 

(noting that an appellate court will not deem an “issue waived if the 

district court actually considered it”). 

The dissent would find Impossible Foods’ trademark building

argument waived on the theory that Impossible Foods “expressly 

disavowed” any reliance on Impossible X’s business activities as a basis 

for specific jurisdiction. But the dissent conjures a forceful declaration 

of waiver from what is, at best, the permissible prioritization of different 

arguments below. Though we can all agree that Impossible Foods did 

argue that Impossible X’s enforcement activities served as a 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 15

A

Under the first prong of our three-part analysis, to be 

subject to specific jurisdiction the defendant must 

purposefully direct its activities toward the forum state,

purposefully avail itself of the privileges of conducting 

activities there, or engage in “some combination thereof.” 

Yahoo!, 433 F.3d at 1206. Typically, whether we analyze a 

defendant’s contacts under the purposeful direction or 

purposeful availment test “turns on the nature of the 

underlying claims.” Ayla, 11 F.4th at 979. When a 

defendant’s conduct primarily occurs outside the forum 

state, we generally apply the purposeful direction test and 

look to whether the defendant expressly aimed acts at the 

jurisdictional hook, the dissent is wrong to suggest that Impossible 

Foods’ reliance on this theory was “exclusive.” 

Rather, the record shows that in the hearing before the district court on 

which the dissent relies, Impossible Foods argued that Impossible X’s 

business activities in California were supportive of specific jurisdiction, 

emphasizing that California was “where the trademark is located,” where 

Runyon had “operated his business historically,” and where he “has had 

routine and systemic contacts.” Far from “expressly disavowing” this 

basis for jurisdiction, Impossible Foods was careful to “reiterate[]” that 

it “pointed to much more than the cease and desist letter,” including “a 

rich history of forum context going back close to a decade” and “online 

evidence of blog posts and social media posts . . . identifying the physical 

presence of [Impossible X] in California.” The dissent claims that 

“[c]ounsel opined that Impossible Foods’s exclusive reliance on th[e] 

enforcement activities had been ‘very clear’ from the start of litigation.” 

But the quote from counsel was: “I think we have been very clear in our 

papers, Your Honor, that we are arguing specific jurisdiction.” 

In short, in the district court and on appeal, Impossible Foods has 

argued that specific personal jurisdiction is proper in California based on 

Impossible X’s “business development and sales activities.” Although 

we agree with the dissent that the questions presented in this case are 

difficult, we are duty-bound to resolve them. We cannot avoid them 

through an inaccurate accounting of the proceedings below.
16 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

forum state knowing that they would harm the plaintiff there. 

Freestream Aircraft (Bermuda) Ltd. v. Aero L. Grp., 905 

F.3d 597, 603–04 (9th Cir. 2018); see also Ayla, 11 F.4th at 

979. Purposeful availment, meanwhile, is satisfied when 

“the defendant has taken deliberate action within the forum 

state or . . . has created continuing obligations to forum 

residents.” Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 

1995). Thus, “[p]urposeful availment generally provides a 

more useful frame of analysis for claims sounding in 

contract, while purposeful direction is often the better 

approach for analyzing claims in tort.” Global Commodities 

Trading Grp., Inc. v. Beneficio de Arroz Choloma, S.A., 972 

F.3d 1101, 1107 (9th Cir. 2020).

Outside the declaratory judgment context, we have stated 

that because “[t]rademark infringement is treated as tort-like 

for personal jurisdiction purposes,” the purposeful direction 

framework is most applicable. Ayla, 11 F.4th at 979; see 

also, e.g., San Diego Cnty. Credit Union v. Citizens Equity 

First Credit Union, 65 F.4th 1012, 1035 (9th Cir. 2023); 

Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th 1085, 

1090–91 (9th Cir. 2023). But we have specifically 

recognized that “our cases do not impose a rigid dividing 

line” between purposeful availment and purposeful 

direction. Global Commodities, 972 F.3d at 1107; see also 

Freestream Aircraft, 905 F.3d at 605 (similar); Davis v. 

Cranfield Aerospace Sols., Ltd., 71 F.4th 1154, 1162 (9th 

Cir. 2023) (noting that we have never held that the 

distinction between purposeful direction and availment is “a 

hard-and-fast rule”). Although the distinction between 

purposeful availment and direction is often a useful and 

appropriate doctrinal table-setting device, “there’s no need 

to adhere to [this] iron-clad doctrinal dichotomy” in every 

case. Davis, 71 F.4th at 1162. Indeed, such a doctrinal 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 17

dichotomy could be an ill-fit for evaluating a declaratory 

judgment case in which the traditional roles of plaintiff and 

defendant are reversed, especially when, as here, the 

defendant’s actions were largely taken from within the state. 

See Freestream Aircraft, 905 F.3d at 605 (explaining that 

“[t]he effects doctrine . . . makes more sense when dealing 

with out-of-forum tortfeasors”).

At the end of the day, the purposeful direction and 

availment tests simply frame our inquiry into the defendant’s

“purposefulness” vis-à-vis the forum state, ensuring that 

defendants are not “haled into a jurisdiction solely as a result 

of random, fortuitous, or attenuated contacts.” Global 

Commodities, 972 F.3d at 1107 (quoting Burger King Corp. 

v. Rudzewicz, 471 U.S. 462, 475 (1985)). And by that 

general metric, we easily conclude, as the district court did,

that Impossible X purposefully directed its activities toward 

California and/or purposefully availed itself of the benefits 

and privileges of California’s laws.

Although Impossible X is now a Texas company, it for 

years operated based out of California. For that time, it 

could reasonably be argued that Impossible X was subject to 

general jurisdiction in the Golden State because Impossible 

X’s contacts were “so constant and pervasive ‘as to render it 

essentially at home’” there. Daimler AG, 571 U.S. at 122

(quoting Goodyear, 564 U.S. at 919). These were not 

somehow “sporadic” activities in California, as the dissent 

claims. 

Between 2014 and 2016, Runyon—and by extension, 

Impossible X—was based in California for many months out 

of the year. Runyon maintained both a personal residence 

and workspace in California and conducted his business 

activities on behalf of Impossible X from the company
18 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

“headquarters” in San Diego. Impossible X specifically 

described itself as having a San Diego “hq,” “setting up 

shop” there in an office festooned with company logos while 

trying to “grow business” in the San Diego area. Many of 

Impossible X’s marketing efforts explicitly sought to 

establish a connection between the company and the 

physical location (“#sandiego,” “#sd”). And Impossible X’s

founder, sole member, and brand incarnate treated San 

Diego as his “home base,” “base point,” and “home.” Even 

after Runyon left California, he continued to return and do 

business there through Impossible X. See Yahoo!, 433 F.3d 

at 1207 (“[W]e must evaluate all of a defendant’s contacts 

with the forum state, whether or not those contacts involve 

wrongful activity by the defendant.”).

To the extent Impossible X asks us to disassociate 

Runyon’s California contacts from those of the LLC, we 

reject that position on these facts. When the company was 

comprised of Runyon and operated “wherever [Runyon] 

happened to be,” Runyon’s own Impossible X-related 

activities in and directed toward California cannot be 

ignored. Impossible X did not act in any other way except 

through Runyon. And calling oneself a “digital nomad” does 

not erase activities sufficient to establish jurisdiction in the 

forum state.

Under all these circumstances, we think it clear that 

Impossible X directed its activities toward California 

through “deliberate action[s] within the forum state.” 

Freestream Aircraft, 905 F.3d at 604 (quoting Ballard, 65 

F.3d at 1498). Runyon and Impossible X’s dedicated multiyear “base” in the forum and extensive promotional

activities in California were not merely “‘random,’ 

‘fortuitous,’ or ‘attenuated’ contacts.” Burger King, 471 

U.S. at 475 (quoting Keeton v. Hustler Mag., Inc., 465 U.S. 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 19

770, 774 (1984), and World-Wide Volkswagen Corp. v. 

Woodson, 444 U.S. 286, 299 (1980)).

The dissent argues that Impossible X’s trademarkbuilding activities alone cannot satisfy the “purposeful 

direction” prong of the specific jurisdiction analysis because 

Impossible X did not aim this conduct at California with the 

knowledge that it would cause trademark-related harm there. 

But in taking this view, the dissent would impose the very

“iron-clad doctrinal dichotomy” between purposeful 

availment and direction that we have recently (and 

repeatedly) said need not govern in every case. See, e.g.,

Davis, 71 F.4th at 1162; Global Commodities, 972 F.3d at 

1107; Freestream Aircraft, 905 F.3d at 605. 

Though purposeful direction does require some degree 

of knowledge that the plaintiff will be harmed in the forum 

state, this is to ensure that “the defendant’s actions connect 

him to the forum.” Walden, 571 U.S. at 289 (emphasis in 

original). That connection obviously exists in this case. 

When, as here, the defendant’s conduct indisputably 

occurred in the forum state—and where the defendant was 

in fact based there—there is no further requirement that the 

defendant have specific knowledge that its in-state conduct 

would eventually cause harm in that jurisdiction. See 

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 

803 (9th Cir. 2004) (describing the purposeful direction test 

as applying when “the defendant’s actions outside the forum 

state . . . are directed at the forum”); Freestream Aircraft, 

905 F.3d at 605 (explaining that “a purposeful direction 

analysis naturally applies in suits sounding in tort where the 

tort was committed outside the forum state”). Instead, when 

the defendant has operated from within the jurisdiction, we 

focus on whether the defendant’s “entire course of 

dealing”—and “not solely the particular . . . conduct giving 
20 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

rise to the claim”—establishes sufficient minimum contacts 

to satisfy due process. Global Commodities, 972 F.3d at 

1108. 

Under this standard, we cannot simply ignore Impossible 

X’s California contacts on the theory that it had no 

knowledge at the time that its actions in the forum state could 

lead to a dispute like this. And it is hardly novel to say that 

a company that operated from California for years availed 

itself of that state’s privileges and directed its activities there. 

The dissent’s hyperbolic assertion that we have engaged in 

“potentially the most radical reimagining and expansion of 

specific jurisdiction in decades” is obviously false. 

We note that Impossible Foods does also argue that 

Impossible X is subject to personal jurisdiction in California 

because Impossible X “purposefully directed” its trademark 

enforcement activities there. Impossible Foods points 

principally to Impossible X’s cease and desist letter to 

Impossible Foods (sent to its outside counsel in Washington 

State) and Impossible X’s TTAB opposition (filed in the 

Washington, DC area). Impossible Foods claims that these 

enforcement actions were effectively directed toward 

California because Impossible Foods is based there. In its 

view, California is thus the location where the effects of any 

restrictions on its trademark use would likely be felt. 

Because we have concluded that Impossible X’s 

trademark building activities are sufficient to satisfy the 

purposeful direction/availment prong, we do not decide 

whether Impossible X’s trademark enforcement activities 

could serve as further support for personal jurisdiction. Our 

precedent counsels caution in this regard. Citing the “strong 

policy reasons to encourage cease and desist letters,” Yahoo! 

held that in the usual case, “[a] cease and desist letter is not 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 21

in and of itself sufficient to establish personal jurisdiction 

over the sender of the letter.” 433 F.3d at 1208. In Yahoo!,

we ultimately found personal jurisdiction over foreign 

defendants in California based on their successful efforts to 

obtain and enforce French court orders “directing Yahoo! to 

take actions in California, on threat of a substantial penalty.” 

Id. at 1209. Although Impossible Foods tries to analogize 

the TTAB opposition to the French orders in Yahoo!, there 

are obvious differences between the two, most notably that 

the TTAB has no authority to grant injunctive or monetary 

relief (indeed, the TTAB has not issued any decision here at 

all). We are also mindful that under Walden, we must

“look[] to the defendant’s contacts with the forum State 

itself, not the defendant’s contacts with persons who reside 

there,” because “the plaintiff cannot be the only link between 

the defendant and the forum.” 571 U.S. at 285.

Impossible X’s commercialization efforts in California 

are sufficient to establish both the purposeful 

availment/direction requirement and the remaining 

requirements for personal jurisdiction, as we next explain. 

We thus need not and do not decide whether Impossible X’s

trademark enforcement activities could have any additional 

relevance in the personal jurisdiction analysis.

B

Though Impossible X had significant contacts with the 

forum state, Impossible Foods must still show that its

declaratory judgment claims “arise out of or relate to the 

defendant’s contacts” with California. Ford Motor Co., 141 

S. Ct. at 1025 (quoting Bristol-Myers Squibb Co. v. Superior 

Ct. of Cal., S.F. Cnty., 582 U.S. 255, 262 (2017)). In 

conducting this second prong of the inquiry, “we consider 

the extent of the defendant’s contacts with the forum and the 
22 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

degree to which the plaintiff’s suit is related to those 

contacts.” Yahoo! Inc., 433 F.3d at 1210. A single contact 

with the forum state may be sufficient to support jurisdiction 

if the action “arise[s] out of that particular purposeful contact 

of the defendant with the forum state.” Id. (quoting Lake v. 

Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). Conversely, a 

stronger showing of purposeful contacts with the forum state 

“will permit a lesser showing” of relatednessto the litigation. 

Id. That is because a defendant who has more substantially 

engaged with the forum—such as one who has 

“continuously and deliberately exploited” the forum state’s 

market—will more reasonably anticipate being subject to 

personal jurisdiction for causes of action that do not directly 

arise from those contacts, but that nonetheless “relate to” 

them. Ford Motor Co., 141 S. Ct. at 1027 (quoting WorldWide Volkswagen, 465 U.S. at 781).

The “arising out of or relating to” prong of the specific

personal jurisdiction analysis presents a threshold analytical 

question in this case. In a typical intellectual property action, 

specific jurisdiction would be based on the defendant’s 

infringing activities in the forum state. See, e.g., Mavrix 

Photo, 647 F.3d at 1229 (finding personal jurisdiction where 

defendant used “copyrighted photos as part of its 

exploitation of the California market for its own commercial 

gain”). In this case, however, we have a trademark

declaratory judgment action seeking a declaration of noninfringement. This raises the question of what, exactly, the 

claim could “arise out of or relate to.” The parties present 

different views on that important question.

1

Drawing on Federal Circuit precedent from the patent 

context, Impossible X argues that a declaratory judgment 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 23

action for trademark non-infringement can only “arise out of 

or relate to” trademark enforcement activities in the forum 

state. The dissent agrees. On this view, Impossible X’s 

trademark building activities and brand development efforts 

in California are simply irrelevant to the “arising out of or 

related to” inquiry.

In the case of declaratory judgment actions for patent 

non-infringement or invalidity, the Federal Circuit has stated 

that “only those activities of the patentee that relate to the 

enforcement or defense of the patent can give rise to specific 

personal jurisdiction for such an action.” Radio Sys. Corp. 

v. Accession, Inc., 638 F.3d 785, 789 (Fed. Cir. 2011). 

Similarly, in Avocent Huntsville Corp. v. Aten International 

Co., 552 F.3d 1324 (Fed. Cir. 2008), the Federal Circuit 

explained that in a declaratory judgment action for patent 

non-infringement, “a claim neither directly arises out of nor 

relates to the making, using, offering to sell, selling, or 

importing of arguably infringing products in the forum, but 

instead arises out of or relates to the activities of the 

defendant patentee in enforcing the patent or patents in suit.” 

Id. at 1332. By this logic, “[t]he relevant inquiry for specific 

personal jurisdiction purposes then becomes to what extent 

has the defendant patentee purposefully directed such 

enforcement activities at residents of the forum, and the 

extent to which the declaratory judgment claim arises out of 

or relates to those activities.” Id. (quotations and alterations 

omitted).

Although it identifies no federal court of appeals that has 

done so, Impossible X argues that we should import the 

Federal Circuit’s approach for patent declaratory judgment

actions into the trademark context. Impossible X further

maintains that if this approach governs, there can be no 

personal jurisdiction over Impossible X because its
24 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

trademark enforcement activities—the cease and desist letter

to Impossible Foods and TTAB opposition—were not 

directed toward California. (Recall that above, we found 

purposeful availment/direction based on Impossible X’s 

trademark building efforts in California and did not rely on 

its trademark enforcement activities.)

We conclude that the Federal Circuit authority on which 

Impossible X relies does not govern here. We decline to 

adopt a rigid rule excluding pre-enforcement 

commercialization activities from consideration in the 

personal jurisdiction analysis when it comes to declaratory 

judgment actions for trademark non-infringement. We reach 

this conclusion for several reasons.

First, even in the patent context, Federal Circuit 

precedent suggests that courts may not necessarily be 

constrained to considering only patent enforcement 

activities in assessing which forum contacts are sufficiently 

related to the declaratory judgment action. Or, put another 

way, the Federal Circuit may treat the category of “patent 

enforcement activities” as broader than simply sending cease 

and desist letters and the like. Though mere “sales” of

products in the forum state will not “support a claim of 

specific personal jurisdiction over a defendant patentee,”

Avocent, 552 F.3d at 1336, the Federal Circuit’s decision in 

Avocent, on which Impossible X principally relies, itself 

discusses how certain licensing arrangements can support 

finding personal jurisdiction over patent declaratory 

judgment defendants. See id. at 1334–36 (citing past Federal 

Circuit precedents); see also Trimble Inc. v. PerDiemCo 

LLC, 997 F.3d 1147, 1155–57 (Fed. Cir. 2021) (noting that 

“the Supreme Court’s recent decision in Ford has 

established that a broad set of a defendant’s contacts with a 

forum are relevant to the minimum contacts analysis,” and 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 25

considering as part of the specific jurisdiction analysis the 

defendant’s efforts to arrange a patent license with a 

California company). Thus, even in the patent context, it is 

not so clear that the Federal Circuit adheres to a rigid brightline approach that considers only traditional enforcement 

activities as part of the “arising out of or related to” inquiry.

Second, and even assuming the Federal Circuit does 

follow a strict rule that excludes consideration of any

commercialization-type activities, that rule is explicitly 

premised on the nature of patent protection. The Federal 

Circuit in Avocent specifically explained that forum 

activities that are unrelated to patent enforcement are 

irrelevant to specific jurisdiction because they are not related 

to the disputed patent rights: because a patent creates the 

right to exclude but not “any affirmative right to make, use, 

or sell anything,” a defendant patentee’s sale of products in 

the forum state “is of no real relevance.” 552 F.3d at 1335 

(quoting Leatherman Tool Grp., Inc. v. Cooper Indus., Inc., 

131 F.3d 1011, 1015 (Fed. Cir. 1997)). As the Supreme 

Court has explained, “[f]ailure of the patentee to make use 

of a patented invention does not affect the validity of the 

patent.” Special Equip. Co. v. Coe, 324 U.S. 370, 378–79 

(1945). By this logic, in a declaratory judgment action 

alleging patent non-infringement, a patentee’s

commercialization of its patented product could be regarded 

as jurisdictionally inconsequential.

Trademark law is different. For trademarks, “[u]se, not 

registration, creates trademark rights and priority.” 2 J. 

Thomas McCarthy, McCarthy on Trademarks and Unfair 

Competition § 16:18 (5th ed. 2017). As we have explained, 

“[i]t is axiomatic in trademark law that the standard test of 

ownership is priority of use.” Sengoku Works Ltd. v. RMC 

Int’l, Ltd., 96 F.3d 1217, 1219 (9th Cir. 1996). Thus, “[t]o 
26 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

acquire ownership of a trademark it is not enough to have 

invented the mark first or even to have registered it first; the 

party claiming ownership must have been the first to actually 

use the mark in the sale of goods or services.” Id.; see also, 

e.g., Lodestar Anstalt v. Bacardi & Co. Ltd., 31 F.4th 1228, 

1236 (9th Cir. 2022) (citing cases). Our multi-factor test for 

analyzing trademark infringement, see AMF Inc. v. 

Sleekcraft Boats, 599 F.2d 341, 350–54 (9th Cir. 1979), 

accordingly focuses in substantial part on how the mark was 

used. This critical difference between trademark and patent 

law suggests we should be reticent to transplant a Federal 

Circuit approach that is specifically geared to patent law.

Third, if we were to limit the specific jurisdiction inquiry 

to trademark enforcement activities, as Impossible X 

suggests, this would invite potential tension with Ford 

Motor Co. v. Montana Eighth Judicial District Court, 141 S. 

Ct. 1017 (2021), the Supreme Court’s most definitive 

pronouncement on the “arising out of or related to” prong of 

the specific jurisdiction framework. In Ford, the Supreme 

Court reiterated that “there must be an affiliation between 

the forum and the underlying controversy, principally, [an] 

activity or an occurrence that takes place in the forum State 

and is therefore subject to the State’s regulation.” Id. at 1025 

(quoting Bristol-Myers, 582 U.S. at 262). But the nature of 

that required “affiliation” need not be causal: “None of [the 

Court’s] precedents has suggested that only a strict causal 

relationship between the defendant’s in-state activity and the 

litigation will do.” Id. at 1026. 

Emphasizing the disjunctive nature of the legal test—

“arise out of or relate to”—Ford explained that while “[t]he 

first half of that standard asks about causation, . . . the back 

half, after the ‘or,’ contemplates that some relationships will 

support jurisdiction without a causal showing.” Id. The 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 27

upshot of this clarification was that Ford was subject to 

personal jurisdiction in Montana and Minnesota for product 

liability claims involving automobile accidents in those 

states—for vehicles that were neither sold, designed, nor 

manufactured there—based on Ford “systematically 

serv[ing] a market” in those states through its extensive 

sales, marketing, and servicing activities. Id. at 1028. 

Impossible X of course does not enjoy the pervasive 

relationship with California that Ford, through its national 

sales and marketing efforts, had with Montana and 

Minnesota. But the analytical framework that Ford provides

helps to see why it is error to limit the relevant jurisdictional 

contacts to those trademark enforcement activities that may 

have, in a more direct or immediate sense, produced the legal 

uncertainty that in turn spawned the declaratory judgment 

action. Such uncertainty is, of course, necessary to establish 

a concrete dispute, and thus subject matter jurisdiction. See 

generally MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 

(2007). But for personal jurisdiction purposes, the events 

that ensured the live controversy between the parties do not

fully define the scope of the contacts that will be relevant to 

the underlying dispute over the trademark rights themselves.

The dissent’s insistence that we should focus only on 

trademark enforcement activities and extend the Federal 

Circuit’s approach into the trademark context overlooks this 

important distinction between subject matter and personal 

jurisdiction. In claiming that we often borrow from patent 

law in the trademark context, the dissent improperly relies 

on portions of the McCarthy treatise and our decision in San 

Diego County Credit Union that concerned Article III 

jurisdiction, i.e., subject matter jurisdiction. See San Diego 

Cnty. Credit Union, 65 F.4th at 1030; McCarthy, supra, 

§ 32:50. As we have just explained, to ensure an actual 
28 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

controversy (subject matter jurisdiction) between the parties

in a declaratory judgment action, the dispute must be “of 

sufficient immediacy.” MedImmune, 549 U.S. at 127 

(quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 

U.S. 270, 273 (1941)). But the events that produce that 

required immediacy (such as trademark enforcement 

activities) do not ringfence the facts (and thus the 

jurisdictional contacts) that will be relevant to the substance 

of the parties’ underlying dispute.

Given trademark law’s focus on trademark use, 

McCarthy, supra, § 16:18; Sleekcraft Boats, 599 F.2d at 

350–54, trademark usage is central in evaluating trademark 

rights. Consistent with Ford, an action seeking a declaration 

of trademark non-infringement can thus arise out of, or at the 

very least relate to, trademark building activities in a forum 

state. To the extent the relationship between these trademark 

building activities and a later trademark declaratory 

judgment action is not strictly causal, Ford confirms that is 

not strictly required. 141 S. Ct. at 1026. 

The dissent is thus clearly wrong in suggesting that under 

our decision today, a plaintiff like Impossible Foods could 

bring a declaratory judgment action like this one without any 

material threat of an enforcement action by the defendant. 

We of course hold no such thing. In a declaratory judgment 

action, sufficient immediacy of dispute (which exists here)

remains a requirement for Article III jurisdiction. See 

MedImmune, 549 U.S. at 127. But the actions that generate 

that immediacy do not thereby demarcate the contacts 

relevant to a personal jurisdiction analysis of the parties’ 

actual dispute on the merits. This is true not only as a matter 

of logic, but of law. In a declaratory judgment for breach of 

contract, for example, a letter accusing one party of breach 

could create the immediacy required for Article III 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 29

jurisdiction. But we would not limit ourselves to the 

circumstances surrounding that letter in defining the relevant 

contacts for specific personal jurisdiction purposes, while 

ignoring the whole of the parties’ relationship. See Picot v. 

Weston, 780 F.3d 1206, 1212 (9th Cir. 2015) (explaining 

that, in a declaratory judgment action for breach of contract, 

the specific jurisdiction inquiry extends to “prior 

negotiations and contemplated future consequences, along 

with the terms of the contract and the parties’ actual course 

of dealing” (quoting Burger King, 471 U.S. at 479)). In this 

case, we have simply applied that same basic approach to 

trademark declaratory judgment actions, because, unlike 

patents, trademark rights turn on use, and personal 

jurisdiction requires that we “comprehensively evaluate the 

extent of the defendant’s contacts with the forum state and 

those contacts’ relationship to the plaintiffs’ claims.” Davis, 

71 F.4th at 1162.

Finally, we note that at least one other circuit addressing 

personal jurisdiction in a trademark declaratory judgment 

action did not follow the rigid approach that Impossible X 

puts forth. In CompuServe, Inc. v. Patterson, 89 F.3d 1257 

(6th Cir. 1996), the Sixth Circuit concluded that a trademark 

declaratory judgment action defendant was subject to 

specific jurisdiction in Ohio when he had marketed his 

software product exclusively on the plaintiff’s Ohio-based 

server system. It reasoned that the declaratory judgment 

action arose, in part, out of these contacts, because “any 

common law trademark or trade name which [the defendant] 

might have in his product would arguably have been created 

in Ohio.” Id. at 1267. The Sixth Circuit did not limit its 

inquiry to trademark enforcement-type conduct.

For these reasons, we do not confine our analysis under 

the “arising out of or related to” prong to Impossible X’s 
30 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

trademark enforcement activities. To the extent the Federal 

Circuit follows such an approach for patent declaratory 

judgments, that approach is not justified in the trademark 

context, given the differences between patent and trademark

rights.

2

Having rejected Impossible X’s strict enforcementactions-only approach, we now consider whether Impossible 

Foods’ trademark declaratory judgment action arises out of 

or relates to Impossible X’s contacts with California. We 

conclude that it does. Impossible Foods’ declaratory 

judgment action requires an assessment of the parties’ 

respective rights in the IMPOSSIBLE mark. Under 

trademark law, those rights are based on when and how the 

trademark holder used the mark. Impossible X’s trademark 

building activities in California are thus integral to the scope 

of the rights that are to be declared in this case. Those 

activities have a sufficient nexus to this dispute to satisfy due 

process.

In its complaint, Impossible Foods sought “a declaration 

that its use and registration of the trademark IMPOSSIBLE 

in connection with recipes, food ingredients, and cooking 

information” did not infringe on Impossible X’s trademark 

rights. Impossible Foods’ complaint extensively discussed

Impossible X’s TTAB notice of opposition, which is what 

prompted Impossible Foods to take legal action. In that 

opposition, Impossible X made broad claims about its rights 

to the IMPOSSIBLE mark. It asserted, for example, that 

since 2010, it “has continually used the [IMPOSSIBLE] 

mark . . . to provide a wide range of goods and services, 

including apparel, fitness products, nutritional supplements, 

consulting services, and philanthropic services.” Impossible 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 31

X also made other expansive assertions about its use of the 

mark since 2010 for “nutrition, food, and cooking” purposes, 

as well as in connection with clothing and personal fitness. 

According to Impossible X, these uses of the mark were all

“longstanding and continuous.” 

Impossible X’s far-reaching TTAB opposition puts at 

issue the full extent of Impossible X’s use of the 

IMPOSSIBLE mark, including as to food and nutrition, the 

apparent core of the parties’ current dispute. To evaluate 

Impossible X’s claimed rights in the mark, one must evaluate 

its use of the mark. See, e.g., McCarthy, supra, § 16:18; 

Sleekcraft Boats, 599 F.2d at 350–54. Although trademark 

registration (which is not mandatory) “constitutes ‘prima 

facie evidence’ of the mark’s validity” and confers other 

“valuable benefits,” Iancu v. Brunetti, 139 S. Ct. 2294, 2297 

(2019) (quoting 15 U.S.C. § 1115(a)), “only use in the 

marketplace can establish a mark.” Miller v. Glenn Miller 

Prods., Inc., 454 F.3d 975, 979 (9th Cir. 2006). This 

analysis requires consideration of factors such as the “use 

and function” of the mark and how it is “generally used.” 

Sleekcraft Boats, 599 F.2d at 349–50; see also San Diego 

Cnty. Credit Union, 65 F.4th at 1035 (explaining for 

personal jurisdiction purposes that a declaratory judgment 

plaintiff’s claims for non-infringement “arose out of” the 

defendant’s “use of its trademarks in California because 

those are the very same trademarks” that the defendant “used 

to attack [the plaintiff’s] trademark registration in the TTAB 

proceedings”).

In this case, a core situs for Impossible X’s trademark 

building and trademark use was California, which for 

approximately two years was the “hq” and “base point” for 

Impossible X and Runyon. Any assessment of Impossible 

X’s assertions in its TTAB opposition about its use of the 
32 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

mark will require consideration of the company’s activities 

in California. Indeed, much of the apparent value of 

Impossible X as an entity would appear to consist of the 

assertedly powerful nature of its brand. Impossible Foods 

has fairly demonstrated that California is where Runyon 

most clearly endeavored to develop brand recognition, in 

some instances by explicitly tying the ethos of the 

IMPOSSIBLE mark to California itself. 

The California contacts we set forth above in detail are 

relevant to an assessment of Impossible X’s trademark 

usage, and thus to its claimed rights in the IMPOSSIBLE 

mark. That includes Impossible X’s use of the mark in the 

sphere of food and nutrition—the very area in which 

Impossible Foods claims superior rights in the mark. 

Because Impossible Foods’ declaratory judgment action 

sufficiently “arises out of or relates to” Impossible X’s 

trademark building activities in California, we have no need 

to consider whether Impossible X’s trademark enforcement 

activities could provide additional support for asserting 

specific personal jurisdiction over Impossible X.

The dissent argues that the clear relationship between 

Impossible X’s trademark-building activities and this 

declaratory judgment action is not enough for specific 

jurisdiction because, even after Ford, a plaintiff is still 

required to show “some causal nexus.” This squarely 

contradicts Ford’s statement that “some relationships will 

support jurisdiction without a causal showing.” 141 S. Ct. 

at 1026. As we have explained, after Ford “a claim can 

relate to” a defendant’s forum contacts “even absent 

causation.” Yamashita v. LG Chem, Ltd., 62 F.4th 496, 505 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 33

(9th Cir. 2023).2 Through the application of rigid patentbased rules that have no proper application here, the dissent 

simply ignores Impossible X’s extensive contacts with 

California and their direct relationship to the trademark 

rights that are at issue in this case.

We of course agree that the phrase “related to” 

“incorporates real limits, as it must to adequately protect 

defendants foreign to a forum.” Ford, 141 S. Ct. at 1026. 

The “arising out of” inquiry demands similar care. Our 

holding here thus does not mean that simply any sales and 

marketing activities will create specific personal jurisdiction 

in a declaratory judgment action for trademark noninfringement. We certainly do not suggest that a company 

like Impossible X could be subject to specific jurisdiction in 

all fifty states in a trademark declaratory judgment action

merely because its social media self-promotion is beamed 

out through nationwide online marketing efforts. Impossible 

X argues this will be the implication of our reliance on its 

trademark building activities, but it is mistaken. There is an 

obvious difference between undifferentiated nationwide 

sales and marketing efforts and what we have here: 

Impossible X for a substantial period of time using

California as its “base point” and “headquarters” to build the 

2 The dissent cites several cases from other circuits in support of its claim 

that “some causal nexus” is required. If anything, these cases prove the 

opposite. See, e.g., Hood v. Am. Auto Care, LLC, 21 F.4th 1216, 1222 

(10th Cir. 2021) (noting that, in Ford, “the Supreme Court made clear 

that a causal connection is not required”). What these cases do support 

is the general proposition that “relatedness” does not mean “anything 

goes,” and that courts must carefully apply due process principles to 

determine when conduct is sufficiently affiliated with the “forum and the 

underlying controversy” to establish personal jurisdiction. Ford Motor 

Co., 141 S. Ct at 1026 (internal quotations omitted). Our analysis is 

entirely consistent with that directive.
34 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

brand and establish the asserted legal rights that are at the 

center of this dispute.

Impossible X is likewise wrong in arguing that finding 

specific jurisdiction here will collapse the distinction 

between specific and general jurisdiction. Our analysis does 

not blur that important distinction. This case presents the

specific situation of a company and its sole member who

were previously based in California, went “nomadic,” and 

then resettled elsewhere. Although the contacts we have 

relied upon would be relevant to a general jurisdiction 

analysis should Impossible X have stayed in San Diego, that 

it pulled out of California does not mean those same contacts 

are somehow irrelevant when it comes to specific 

jurisdiction. It is hardly surprising that a company could be 

subject to suit in the forum in which it was previously 

headquartered. At the same time, we do not suggest that 

Impossible X is subject to personal jurisdiction in California 

for any and every lawsuit. Nor do we hold, as the dissent 

claims, that “any company that has past business-generating 

activities in a state” will always be subject “to specific

jurisdiction in that state for a trademark declaratory 

judgment action.” We simply hold that given the nature of 

this declaratory judgment action—as teed up through

Impossible X’s TTAB opposition—and considering

Impossible X’s substantial contacts with California, there is 

a sufficient “affiliation between the forum and the 

underlying controversy.” Ford Motor Co., 141 S. Ct. at 

1025 (quoting Bristol-Myers, 582 U.S. at 262).

Impossible X finally argues that if we find personal 

jurisdiction here, trademark holders could be subject to 

specific jurisdiction in trademark declaratory judgment 

actions for any past trademark building activities, however 

remote in time. Impossible X’s concerns are again 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 35

substantially overstated. Even if the first two prongs of the 

specific jurisdiction inquiry are met, the assertion of 

personal jurisdiction must still be reasonable. See, e.g.,

Axiom Foods, 874 F.3d at 1068. That is the import of the 

third prong of the specific jurisdiction inquiry, which we 

address in more detail below. But suffice it to say, a 

trademark declaratory judgment defendant whose forumrelated activities (or whose predecessor’s forum-related 

activities) are either fleeting or relics of a distant past may

well have arguments that haling it into the forum is 

unreasonable. We do not hold that Impossible X or any 

trademark holder is subject to specific jurisdiction until the 

end of time for any trademark declaratory action in a situs of 

trademark development. That is neither a necessary 

implication of our ruling today nor the facts of the case 

before us.

For these reasons, we hold that Impossible Foods’ 

declaratory judgment action “arises out of or relates to”

Impossible X’s activities in California.

3

The district court took a narrower approach to the 

“arising out of or related to” inquiry, and we pause to explain 

why its analysis was mistaken. 

As recounted above, the district court found that 

Impossible X had purposefully directed its activities toward 

California based on its trademark building and 

commercialization efforts there. But the court concluded 

that this dispute did not arise out of or relate to those contacts 

based on a purported timing issue: Impossible Foods did not 

begin to use the IMPOSSIBLE mark in commerce until June 

2016, and Runyon had left San Diego by that time. In the 

district court’s view, this meant that the earliest point at 
36 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

which this dispute could arise was June 2016, rendering 

irrelevant Impossible X’s earlier trademark building

activities in California. 

This analysis was erroneous. Even assuming the district

court correctly determined that Impossible Foods’ trademark 

usage did not commence until June 2016, after Runyon 

(mostly) left San Diego—a point Impossible Foods strongly 

disputes—that does not render Impossible X’s pre-June 

2016 California activities irrelevant to the “arising out of or 

related to” inquiry. The question for personal jurisdiction 

purposes is whether the plaintiff’s claims “‘arise out of or 

relate to the defendant’s contacts’ with the forum.” Ford 

Motor Co., 141 S. Ct. at 1025 (emphasis added) (quoting 

Bristol-Myers, 582 U.S. at 262). Here, Impossible Foods’ 

claims turn on the scope of Impossible X’s trademark rights, 

which in turn hinge on Impossible X’s use of the 

IMPOSSIBLE mark. For the reasons we have explained, 

Impossible X’s trademark building efforts in California bear 

on its use of the mark and thus the scope of its rights. That 

some of Impossible X’s forum-related contacts may have

preceded Impossible Foods’ own trademark registration and 

usage in commerce does not mean this dispute fails to arise 

out of or relate to those contacts. From the perspective of 

both personal jurisdiction and trademark law, it is incorrect 

to conceive of this case as limited to Impossible Foods’ use 

of the IMPOSSIBLE mark.

Any ironclad personal jurisdiction timing rule based on 

Impossible Foods’ own trademark registration or usage is

thus unsupported. And to the extent the district court’s 

analysis can be read to suggest that Impossible X’s 

jurisdictionally relevant contacts could be only those relating 

to its trademark enforcement activities, that reasoning is 

flawed for the reasons we explained above.
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 37

C

We now turn to the third and final prong of the specific 

jurisdiction analysis. Because Impossible Foods has 

demonstrated that Impossible X purposefully directed its 

activities toward California and that this declaratory 

judgment action arises out of or relates to those contacts with 

the forum state, the burden now “shifts to the defendant to 

present a compelling case that the exercise of jurisdiction 

would not be reasonable.” Axiom Foods, 874 F.3d at 1068–

69 (quotations omitted). The district court did not reach this 

part of the inquiry. But the analysis here is straightforward: 

Impossible X has not shown that exercising specific

jurisdiction over it in California would be unreasonable, 

much less presented a “compelling case” as to why that

would be so.

We evaluate the reasonableness of exercising personal 

jurisdiction by evaluating the following factors:

(1) the extent of the defendant’s purposeful 

interjection into the forum state’s affairs; (2) 

the burden on the defendant of defending in 

the forum; (3) the extent of conflict with the 

sovereignty of the defendant’s state; (4) the 

forum state’s interest in adjudicating the 

dispute; (5) the most efficient judicial 

resolution of the controversy; (6) the 

importance of the forum to the plaintiff’s 

interest in convenient and effective relief; 

and (7) the existence of an alternative forum. 

Freestream Aircraft, 905 F.3d at 607. These factors either 

favor Impossible Foods or are neutral at best.
38 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

The extent of the defendant’s “purposeful interjection” 

into the forum “is ‘analogous to the purposeful direction’ 

factor.’” Ayla, 11 F.4th at 984 (quoting Sinatra v. Nat’l 

Enquirer, Inc., 854 F.2d 1191, 1199 (9th Cir. 1988)). On 

this front, personal jurisdiction is reasonable in California 

for the same reasons we articulated above. Impossible X 

purposefully interjected itself into California by operating its 

business there for two years and by continuing to have 

business contacts with the state thereafter, including through 

brand-marketing activities featuring California. Impossible 

X is no stranger to California. As a company previously 

headquartered there, it can hardly feign surprise at being 

called back to the state when a dispute has arisen relating to 

its activities in the forum.

Nor has Impossible X shown that litigating this action in 

California would be unduly burdensome, such that the 

“inconvenience is so great as to constitute a deprivation of 

due process.” Freestream Aircraft, 905 F.3d at 608 (quoting 

Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1323 (9th 

Cir. 1998)). Undermining any assertion of inconvenience, 

Runyon has made many trips to California since relocating, 

including in connection with his work for Impossible X. In 

any event, we have recognized that “modern advances in 

communications and transportation have significantly

reduced the burden of litigating in another forum.” Id.

(alterations omitted) (quoting Sinatra, 854 F.2d at 1199). 

There is no reason to think this case will be any different.

The remaining reasonableness factors either favor 

California as a forum, or at the very least do not present a 

“compelling case” against it. California likely has a stronger 

interest in this dispute than Texas, and litigating this case in 

California would seem more efficient. But even if there are 

arguments otherwise, the balance of the reasonableness 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 39

factors supports Impossible Foods. Impossible X has not 

met its burden of demonstrating that exercising personal 

jurisdiction against it in California would be unreasonable.

* * *

We hold that Impossible X is subject to specific personal 

jurisdiction in California in this trademark declaratory 

judgment action. The judgment of the district court is 

reversed, and the case is remanded for consideration of the 

merits of Impossible Foods’ claims.

REVERSED.

VANDYKE, Circuit Judge, dissenting: 

Impossible X has not purposefully directed any 

trademark enforcement activity at California, and 

Impossible Foods’s declaratory judgment action does not 

arise out of or relate to Impossible X’s relevant activities in 

California. Yet the majority concludes that a California 

court nevertheless has specific jurisdiction over Impossible 

X because it once operated out of California and has had 

occasional contacts with the state since relocating to Texas 

years before this dispute arose. 

The majority’s rule, which reconceptualizes specific 

jurisdiction as a kind of backward-looking “general 

jurisdiction lite,” pushes our precedent in a new and 

troubling direction. Carried to its logical conclusion, today’s 

ruling subjects any company that has past businessgenerating activities in a state to specific jurisdiction in that 

state for a trademark declaratory judgment action—

notwithstanding the complete absence of any trademark 
40 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

enforcement activities directed at that state. The majority 

insists its new rule shouldn’t be applied that way. But it 

provides no reason why it should be artificially limited or 

where those artificial lines should be drawn, leaving lower 

courts and litigants guessing. I wouldn’t reach the difficult 

question decided by the majority today because Impossible 

Foods affirmatively waived it in the court below. But if I 

was forced to reach it, I would instead apply a different and 

more concrete rule than the one created by the majority—

one we already apply in the admittedly imperfectly 

analogous field of patent law—to hold that specific 

jurisdiction for a trademark declaratory judgment action like 

this exists only if a defendant purposefully directs at least 

one enforcement activity at the forum. I thus respectfully 

dissent.

DISCUSSION

I. The Majority Bases Its Finding of Specific 

Jurisdiction on an Argument Impossible Foods 

Waived.

Impossible Foods did not raise before the district court 

any argument that Impossible X’s brand-building activities 

provide an independent basis for specific jurisdiction. But 

on appeal Impossible Foods recasts scattered statements it 

made below, about how a history of those activities would 

make exercise of jurisdiction reasonable under the third 

Schwarzenegger prong, as arguments it purportedly made 

that jurisdiction exists under the first and second 

Schwarzenegger prongs. That sleight of hand misleads the 

majority, none of whose four reasons for concluding that 

Impossible Foods preserved the argument survives close 

scrutiny.
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 41

A. Impossible Foods did not raise before the district 

court, and in fact disavowed, an argument that 

Impossible X’s brand-building activities create 

specific jurisdiction.

In its opposition to Impossible X’s motion to dismiss, 

Impossible Foods identified only Impossible X’s trademark 

enforcement activities as relevant to the first two prongs of 

the Schwarzenegger jurisdictional analysis because it was 

those activities that “threatened to limit [Impossible 

Foods’s] ability to grow aspects of its business in California 

and to disrupt certain marketing and promotional activities” 

there. “Plaintiff’s request for declaratory relief would not 

have been necessary,” Impossible Foods’s counsel advised 

the district court, “but for” the cease-and-desist letter, 

trademark opposition proceeding, and failure of settlement 

negotiations. (Emphasis added.) 

That exclusive reliance on enforcement activities 

continued at the motion hearing, where Impossible Foods’s 

counsel identified only the cease-and-desist letter, the 

trademark opposition proceeding, and settlement 

discussions as “plainly direct[ed] to the State of California.” 

Even though the district court twice opined that those 

enforcement actions alone might be insufficient to create 

jurisdiction and invited Impossible Foods to elaborate on or 

clarify its argument, Impossible Foods doubled down, 

averring that “a claimant who proactively and emphatically 

asserts [trademark] claims in this manner, and plainly directs 

them to the State of California, should reasonably expect to 

be hauled into court here.” Asked by the district court to 

clarify whether counsel’s statement “asserts claims in this 

manner” referred to the abovementioned enforcement 

activities, counsel answered in the affirmative. 
42 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

Lest there be any lingering doubt about the scope of its 

argument, Impossible Foods’s counsel later in the hearing 

emphasized that “on this notion of purposeful 

direction ... [t]he triggering acts are the cease and desist 

letter ... the legal proceeding at the TTAB, and the 

discussions that follow.” Counsel opined that Impossible 

Foods’s exclusive reliance on those enforcement activities 

had been “very clear” from the start of litigation, with any 

references by it to brand-building activities intended simply 

to provide “context” relevant to the third prong of the 

Schwarzenegger jurisdictional analysis—that is, whether 

any exercise of jurisdiction would be reasonable. And when 

the district court responded that such “reasonableness” 

considerations under the third Schwarzenegger prong 

couldn’t be considered under “elements one and two” of the 

Schwarzenegger test, Impossible Foods responded, “I think 

that’s fair, your Honor,” and continued to rely on Impossible 

X’s enforcement activities. In short, Impossible Foods was 

“very clear” in representing to the district court that it was 

relying only on Impossible X’s enforcement activities for the 

first two prongs of the Schwarzenegger analysis.

Our court generally declines to consider an argument that 

a party did not sufficiently raise before the trial court. See 

All. for the Wild Rockies v. Petrick, 68 F.4th 475, 488 (9th 

Cir. 2023). And here, Impossible Foods did not simply fail 

to make an argument below that Impossible X’s brandbuilding activities provided a basis for jurisdiction; it 

expressly disavowed that argument when asked by the 

district court, emphasizing that it was relying exclusively on 

enforcement activities. 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 43

B. Impossible Foods misleads the majority into 

finding an absence of waiver.

That “very clear” argument failed below, however, and 

hasn’t gotten much traction with our court either. So 

Impossible Foods tries to confuse us with a shell game, 

claiming in the alternative that the statements it made below 

about Impossible X’s brand-building activities under the 

third prong of the Schwarzenegger jurisdictional analysis 

can also be deemed to have been made with respect to the 

first two prongs and were thus preserved. The majority 

today falls for that backup ploy, beguiled by two 

misperceptions of reality. First, the majority ignores 

something right before its eyes: the multiple times that 

Impossible Foods disavowed the argument it now claims to 

have preserved. Second, the majority sees something not 

there, claiming that Impossible Foods is now simply 

“elaborating upon and prioritizing an argument based on 

trademark building it raised below.” 

That second misperception seems at least partly induced 

by the majority’s misunderstanding of what it means under 

our precedent for a party to elaborate on or prioritize an 

argument it previously made in the district court. The case 

the majority relies on illustrates the common-sense 

limitations on what properly constitutes mere “elaboration,” 

as opposed to making a new argument on appeal. In Puerta 

v. United States, we permitted a party to “elaborate” on a 

statutory argument it made in district court with additional 

support from the statute’s legislative history. 121 F.3d 1338, 

1341–42 (9th Cir. 1997). None of our cases citing Puerta 

has read that case to stand for the much more ambitious 

proposition that a party “elaborates upon” an argument when 

it makes an argument for the first time on appeal after 
44 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

disclaiming it below.1 Puerta would be more like this case 

if the party had expressly disclaimed any reliance on the 

legislative history in the district court, and then on appeal 

attempted to rely primarily on legislative history.

That is fatal for the majority’s position because 

Impossible Foods never made any argument below that 

Impossible X’s brand-building activities provide an 

independent basis for jurisdiction. The majority tries to 

resuscitate the position in four different ways, principally by 

quoting scattered phrases in the record. But those attempts

quickly flatline once those quotes are examined in context.

C. None of the four arguments the majority offers to 

support its conclusion of nonwaiver survives 

scrutiny.

First, the majority maintains that Impossible Foods 

mentioned in its opposition to the motion to dismiss that 

“Impossible X’s California business activities were relevant 

both to the ‘purposeful direction/availment’ and the ‘arising 

out of/related to’ prongs of the specific jurisdiction 

analysis.” But the majority fails to recognize that 

surrounding sentences and Impossible Foods’ other more 

specific explanations mentioned above compel the 

conclusion that it instead invoked those business interests 

merely to support its argument that jurisdiction arose from 

Impossible X’s trademark-enforcement activities. 

1 The majority appears to understand Allen v. Santa Clara County 

Corrections Police Officers Association, 38 F.4th 68 (9th Cir. 2022) (per 

curiam), to break from this precedent, but it does not. There, the 

plaintiffs were responding to an intervening change in Supreme Court 

precedent, and even then did not attempt to present an argument on 

appeal that they had affirmatively disclaimed before the district court. 

Id. at 70–71.
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 45

Impossible Foods had just noted that its “request for 

declaratory relief would not have been necessary but for” 

those enforcement activities. And the rest of the sentence 

from which the majority quotes clarifies that Impossible X’s 

brand-building activities merely accentuate the reasonability 

of exercising jurisdiction based on enforcement actions: the 

“relationship between the forum state and the defendant’s 

enforcement actions is heightened when the defendant has 

business interests in the forum state.” 

Second, the majority says that Impossible Foods argued 

in the motion hearing that “Impossible X’s business 

activities in California were supportive of specific 

jurisdiction, emphasizing that California was ‘where the 

trademark is located,’ where Runyon had ‘operated his 

business historically,’ and where he ‘has had routine and 

systemic contacts.’” But the majority mischaracterizes the 

colloquy between the district court and Impossible Foods, 

during which Impossible Foods repeatedly stated or affirmed 

that Impossible X’s enforcement activities provide the basis 

for specific jurisdiction. Impossible Foods offered that 

Impossible X’s brand-building activities in California offer 

“a rich history of forum context going back a decade.” But 

it then zagged back to its affirmative point that it was the 

enforcement activities that create jurisdiction. As 

Impossible Foods put it at the hearing, “I would say 

fundamentally, on personal jurisdiction, your Honor, there 

are three points”—all three of which Impossible Foods then 

identified as enforcement activities. 

Third, the majority combines scattered phrases from 

three pages of that same colloquy to conclude that 

Impossible Foods pointed to nonenforcement activity to 

establish jurisdiction, “including ‘a rich history of forum 

context going back close to a decade’ and ‘online evidence 
46 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

of blog posts and social media posts.’” Context shows the 

opposite is true: Impossible Foods noted Impossible X’s 

“rich history of forum context” as it forwent an opportunity 

the district court had just offered it to argue that specific 

jurisdiction could arise from “the conduct of the parties” 

before the initiation of enforcement proceedings. And even 

when the district court subsequently interjected that 

Impossible X’s enforcement activities alone “would not be 

enough” to establish jurisdiction, Impossible Foods resisted 

that conclusion rather than expanding the scope of its 

jurisdictional argument to include nonenforcement 

activities. Because the majority misrepresents that crucial 

exchange, it is worth quoting in full:

The Court: So let’s remember though, Mr. 

Slafsky, for specific jurisdiction it has to be 

contacts with the forum related to the case 

before me, because otherwise [counsel for 

Impossible X] is correct, that veers into the 

elements of general jurisdiction.

Mr. Slafsky: I think we have been very clear 

in our papers, your Honor, that we are 

arguing specific jurisdiction.

The Court: Yes, you have but this 

evidence—

Mr. Slafsky: The triggering acts are the 

cease and desist letter—

The Court: Right.

Mr. Slafsky: —the legal proceedings at the 

TTAB, and the discussions that follow. So 

those together have to be looked at in the 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 47

context of this larger history. There’s a third 

prong under the Schwarzenegger case that 

the Ninth Circuit has issued on the specific 

jurisdiction analysis. That reasonableness, 

that fairness prong, is not something that we 

just throw to the wayside. 

In short, Impossible Foods argued (1) specific jurisdiction 

(2) is based on Impossible X’s enforcement activities, and 

(3) Impossible X’s brand-building activities served as “the 

context of this larger history” for purposes of analysis under 

the third Schwarzenegger prong.

Fourth, perhaps sensing the infirmity of its identified 

bases for finding that Impossible Foods did not waive this 

argument, the majority alternatively concludes that even if 

Impossible Foods did not make the argument below, the 

district court still considered it, examining “‘general 

business contacts’” of Impossible X in California as “an 

independent basis for personal jurisdiction.” But the 

majority tellingly does not offer any quotes from the district 

court order supporting that conclusion. It instead gestures 

widely to six pages of the district court’s order where it 

supposedly “explain[ed] why Impossible X’s trademark 

building contacts were sufficient to establish purposeful 

direction/availment, yet insufficient to meet the ‘arising out 

of or relating to’ inquiry.” But nothing in that page range 

supports that conclusion. It is true that the district court 

mentions Impossible X’s brand-building activities at some 

points. But it does so only as an aside, noting that Impossible 

Foods had merely “identified” these other activities and 

acknowledging what Impossible Foods itself already had 
48 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

acknowledged: that its declaratory judgment claim did not

“arise out of” those activities.2 

II. Even Ignoring Waiver, None of Impossible X’s 

Relevant Activities Were Purposefully Directed at 

California.

Putting aside the majority’s error about waiver, its 

conclusion is also erroneous because Impossible Foods did 

not carry its burden to show that Impossible X purposefully 

directed any suit-related activities at California. That is, it 

failed to show that Impossible X (1) committed an 

intentional act (2) expressly aimed at California (3) that 

caused harm Impossible X knew was likely to be suffered 

there. Will Co., Ltd. v. Lee, 47 F.4th 917, 922 (9th Cir. 

2022).

The majority does not rely on any of Impossible X’s 

enforcement activities as purposefully directed at California. 

And for good reason. Impossible X’s cease-and-desist letter 

was not sent or received in California. Opposition 

proceedings were not initiated there and concerned 

Impossible Foods’s operations nationwide. See San Diego 

Cnty. Credit Union v. Citizens Equity First Credit Union, 65 

2 Because the district court did not consider Impossible X’s California 

general business activities as an independent jurisdictional basis, the 

majority’s reliance on Community House, Inc. v. City of Boise is 

inapposite. Our court there held only that a district court “considered 

and resolved” an argument when it analyzed precisely the argument the 

party wished to newly argue against on appeal. 490 F.3d 1041, 1054 (9th 

Cir. 2007). Panels applying Community House have not diverged from 

this straightforward interpretation. See, e.g., Tarabochia v. Adkins, 766 

F.3d 1115, 1128 & nn.12–13 (9th Cir. 2014).
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 49

F.4th 1012, 1035 (9th Cir. 2023). And settlement 

discussions were not initiated in California.3 

Instead, the majority concludes that Impossible X’s nonenforcement activities alone satisfy Lee’s requirement that 

Impossible X purposefully directed suit-related activities at 

California knowing those activities were likely to cause 

trademark-related harm in California. The activities the 

majority relies on include a number of Instagram posts with

California-themed hashtags, and sporadic consulting and 

networking trips the company’s owner took to California 

years before any trademark enforcement activities began. 

But such general business activities, even if they were more 

plentiful, should not count under this prong because they 

significantly predated and are unconnected with the instant 

controversy—and absent a crystal ball, could not have been 

directed at the forum in a way Impossible X knew would 

likely create future harm there. See Lee, 47 F.4th at 922–23. 

Such purposeful direction could exist only alongside some

anticipated or actual enforcement action aimed at California.

The majority doesn’t rely exclusively on Impossible X’s 

past brand-building activities in California, though. It 

repeatedly references that Impossible X and its owner used 

to be “based in California.” Indeed, the reason Impossible 

X had “brand-building” activities in California during that 

time is because, as the majority observes, that is where 

3 Even assuming that Impossible Foods felt effects from these 

enforcement activities at its headquarters in California, our precedent is 

clear that is irrelevant absent evidence (never offered) that Impossible X 

conducted its enforcement activities outside California for the very 

purpose of achieving those effects inside California. Burri Law PA v. 

Skurla, 35 F.4th 1207, 1259–60 (9th Cir. 2022).
50 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

owner “Runyon—and by extension, Impossible X”—was 

spending much of his time. 

But the majority’s reliance on the existence of past 

general jurisdiction over Impossible X in California as a 

reason to find specific jurisdiction in this case is without 

precedent. It is also potentially the most radical reimagining 

and expansion of specific jurisdiction in decades. Many 

corporations change their state of incorporation or principal 

place of business sometime during their lifecycle. For 

instance, Mark Zuckerburg first launched Facebook from his 

Harvard dorm in Massachusetts and first incorporated it in 

Florida before decamping for the company’s current 

headquarters in California. Under the majority’s use of past 

general jurisdiction to bolster current specific jurisdiction, 

Massachusetts and Florida could now effectively exercise a 

form of specific jurisdiction over any of the social media 

giant’s global operations. The majority seems at least faintly 

aware that its theory has no objective limiting principle, and 

it does not meaningfully try to offer one even though the 

theory would make it nigh impossible for at least some 

defendants to “structure their primary conduct with some 

minimum assurance as to where that conduct will and will 

not render them liable to suit.” World-Wide Volkswagen 

Corp. v. Woodson, 444 U.S. 286, 297 (1980). 

In any event, the majority’s reliance on past general 

jurisdiction to bolster an insufficient basis for specific 

jurisdiction is foreclosed by Supreme Court precedent. A 

forum has general jurisdiction only over a defendant whose 

affiliations with it “are so continuous and systematic as to 

render him essentially at home” there. Goodyear Dunlop 

Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). 

Until today, we have understood the Supreme Court’s 

consistent use of the present tense and the word 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 51

“continuous” when describing those affiliations to be 

intentional, always looking at whether a defendant presently

has systematic affiliations with a forum. E.g., Yamashita v. 

LG Chem, Ltd., 62 F.4th 496, 503 (9th Cir. 2023); Williams 

v. Yamaha Motor Co. Ltd., 851 F.3d 1015, 1020–22 (9th Cir. 

2017); Ranza v. Nike, Inc., 793 F.3d 1059, 1069–71 (9th Cir. 

2015). The majority diverges from that position today 

without offering an explanation for its expansion.4

Perhaps sensing the inherently weak basis for purposeful 

direction in this case, the majority attempts to salvage its 

conclusion here by enlisting the purposeful availment test 

also, even as it concedes that our court has generally stuck 

to the purposeful direction test in trademark infringement 

cases. The majority finds authorization for this syncretism 

in one of our recent cases where we observed that we “have 

specifically recognized that ‘our cases do not impose a rigid 

4 The majority’s novel expansion of specific jurisdiction in this manner 

continues a disturbing streak by our court as it has floated novel theories 

to expand jurisdiction beyond the limits set by the Supreme Court. 

Consider for example Daimler AG v. Bauman, 571 U.S. 117, 136 (2014). 

There, a panel of our court held that U.S. federal courts had general 

jurisdiction over a German carmaker for its Argentinian subsidiary’s 

alleged activities in Argentina just because the carmaker also had a 

separate U.S.-based subsidiary. Bauman v. DaimlerChrysler Corp., 644 

F.3d 909 (9th Cir. 2011). Eight members of our court, dissenting from 

denial of rehearing en banc, noted that the panel had stretched general 

personal jurisdiction “far beyond its breaking point” and that this 

“affront to due process” was “at odds again with the dictates of the 

Supreme Court” and “ignore[d] the bedrock concerns of fundamental 

fairness that underpin Supreme Court due process jurisprudence.” 

Bauman v. DaimlerChrysler Corp., 676 F.3d 774, 774–77 (9th Cir. 

2011) (mem) (O’Scannlain, J., dissenting). The Supreme Court agreed, 

reversing our court’s theory as “beyond even the ‘sprawling view of 

general jurisdiction’ [the Supreme Court] rejected in Goodyear.” 

Daimler AG, 571 U.S. at 136 (quoting Goodyear, 564 U.S. at 929).
52 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

dividing line’ between purposeful availment and purposeful 

direction.’” The majority also points to language from 

another recent case where we said that “there’s no need to 

adhere to [this] iron-clad doctrinal dichotomy’ in every 

case.” 

The majority misreads those cases. Global Commodities

reaffirms that “purposeful availment and purposeful 

direction are distinct concepts,” noting only that a court 

should not impose a rigid dividing line between the two 

“when both contract and tort claims are at issue,” i.e., when 

the two kinds of claims are intertwined and depend on the 

same set of facts in a single case. 972 F.3d at 1107. The 

cases Global Commodities cites in support make clear that 

flexibility is required to accommodate the reality of how 

contracts operate—usually creating an intention of 

continuing relationships and obligations with a forum before 

any specific activity is purposefully directed at the forum. 

E.g., Boschetto v. Hansing, 539 F.3d 1011, 1017 (9th Cir. 

2008). Such intertwined claims are not present in this case, 

and none of Impossible X’s sporadic activities in California 

even hints at a similar degree of anticipated future 

relationships or obligations of Impossible X vis-à-vis 

California.

III.Impossible Foods’s Declaratory Judgment Action 

Did Not Arise out of or Relate to Impossible X’s 

Relevant Activities.

If the majority’s analysis of waiver and the first 

Schwarzenegger prong were correct (it is not), the second 

Schwarzenegger prong would still require us to affirm the 

district court’s dismissal of this case. That prong requires 

the activities purposefully directed at a forum to be the ones 

that “give rise to the liabilities sued on.” Int’l Shoe Co. v. 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 53

Washington, 326 U.S. 310, 317 (1945). In other words, there 

must be a “strong connection” between the purposefully 

directed activities and the alleged harm that triggered the 

suit. Hepp v. Facebook, 14 F.4th 204, 208 (3d Cir. 2021); 

see also LNS Enters. LLC v. Cont’l Motors, Inc., 22 F.4th 

852, 864 (9th Cir. 2022).

Impossible X’s non-enforcement activities cannot create 

such a strong connection on their own because the harm that 

triggers a declaratory judgment action in a trademark 

enforcement case is a plaintiff’s real and reasonable 

apprehension that it will be liable for infringement absent 

that relief. Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 

1157 (9th Cir. 2007).5 Given the many similarities between 

trademark and patent law, our court “regularly borrow[s]”

and reasons analogically from the latter to the former, San 

Diego Cnty. Credit Union, 65 F.4th at 1030–31 & n.8, and 

patent cases leave no doubt that only “an affirmative 

act ... relating to the enforcement of ... patent rights” 

creates such apprehension, 3M Co. v. Avery Dennison Corp., 

673 F.3d 1372, 1377 (Fed. Cir. 2012). Non-enforcement 

activities do not. Prasco, LLC v. Medicis Pharm. Corp., 537 

F.3d 1329, 1341 (Fed. Cir. 2008).

The majority maintains that we should ignore the regular 

practice in patent cases here because trademark rights are 

created by use, whereas patent rights are created by 

registration. The very treatise from which the majority 

scaffolds this argument considers that difference 

unimportant at least for subject-matter jurisdiction for 

declaratory judgment actions, freely drawing conclusions 

5 Because Impossible X’s enforcement activities do not qualify as 

purposefully directed at California under the first Schwarzenegger

prong, they need not be analyzed here under the second prong.
54 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

about requirements in trademark declaratory judgment 

actions from analogies to patent cases. See 6 J. Thomas 

McCarthy, McCarthy on Trademarks and Unfair 

Competition § 32:50 (5th ed. 2023). And we rely on 

analogies between patents and trademarks in other contexts 

as well. San Diego Cnty. Credit Union, 65 F.4th at 1030 n.8 

(“We regularly borrow on principles from patent cases to 

guide our analyses in trademark cases.”).

But even assuming the difference the majority highlights 

is meaningful in analysis of personal jurisdiction, it hardly 

follows that the difference annuls the analogy such that we 

should ignore the rule from patent cases altogether. After 

all, even acknowledging that use matters more in a 

trademark enforcement case than it does in a patent 

enforcement case, that doesn’t mean no amount of 

enforcement activity is necessary for a plaintiff in a 

trademark case to be reasonably apprehensive that it could 

be liable for infringement. If it did, our court’s discussion in 

San Diego County Credit Union and elsewhere as to what 

degree of enforcement activity is enough to create 

reasonable apprehension would be nonsensical. See 65 F.4th 

at 1030–31. And it would mean a plaintiff like Impossible 

Foods could bring a declaratory judgment action like this 

one without any enforcement action by the defendant. 

In short, in contrast to patent cases, there may be more 

of a reason to consider non-enforcement activity as part of 

the specific jurisdiction analysis in trademark cases. But 

there is no reason to jettison entirely, as the majority does 

here, consideration whether the enforcement activity has any 

relation to the declaratory judgment jurisdiction. 

The majority also divulges a fear that following the 

analogy to patent jurisdiction to its logical conclusion and 
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 55

then exercising the self-discipline to require the mandatory 

strong connection to enforcement activities “invite[s] 

potential tension with” Ford Motor Company v. Montana 

Eighth Judicial District Court, 141 S. Ct. 1017 (2021), 

which held that this second jurisdictional prong does not 

always require “a strict causal relationship between the 

defendant’s in-state activity and the litigation.” But that fear 

results from an unbalanced reading of Ford Motor Company, 

which also strenuously reminded us that the second prong 

still “incorporates real limits, as it must to adequately protect 

defendants foreign to a forum.” 141 S. Ct. at 1026; accord 

County of San Mateo v. Chevron Corp., 32 F.4th 733, 754 

n.12 (9th Cir. 2022).

Our court until today has understood those “real limits” 

to require a plaintiff to show some causal nexus—even if not 

a strict one—between activities and harms alleged to have 

arisen from or to be related to the activities.6 E.g., LNS 

6 The majority argues that Ford did away with the need for any causal 

nexus at all between activities and the harms alleged to have arisen from 

them. In the majority’s view, the need for some nexus “squarely 

contradicts Ford’s statement that ‘some relationships will support 

jurisdiction without a causal showing.’” As evidence, the majority 

points to Yamashita, where we recently said that “a claim can relate to a 

defendant’s forum contacts ‘even absent causation.’” 

The majority again is misled by not reading language it quotes in context. 

Yamashita’s discussion of the Supreme Court’s reasoning in Ford

quickly disabuses one of any notion that no causal connection at all is 

needed between a defendant’s activity and a plaintiff’s alleged injury. 

The Yamashita court understood Ford to stand for the proposition that, 

given Ford’s extensive contacts with the forum states, a causal 

connection “may well have” existed between those contacts and the 

plaintiffs’ decision to buy Ford vehicles that then malfunctioned and 

caused them injuries. 62 F.4th at 505. “Given the likelihood of 
56 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

Enters. LLC, 22 F.4th at 863–64. At least six sister circuits 

have agreed with that position. Vapotherm, Inc. v. Santiago, 

38 F.4th 252, 252, 261 (1st Cir. 2022); Johnson v. 

TheHuffingtonPost.com, 21 F.4th 314, 324–25 (5th Cir. 

2021); In re Sheehan, 48 F.4th 513, 526 (7th Cir. 2022); 

Hood v. Am. Auto Care, LLC, 21 F.4th 1216, 1223 (10th Cir. 

2021); Herederos De Roberto Gomez Cabrera, LLC v. Teck 

Res. Ltd., 43 F.4th 1303, 1310–11 (11th Cir. 2022); 

Bernhardt v. Islamic Republic of Iran, 47 F.4th 856, 864–67

causation,” we continued, “the Court reasoned [that] jurisdiction should 

not ride on the exact reasons for an individual plaintiff’s [vehicle] 

purchase, or his ability to present persuasive evidence about them.” Id. 

We concluded in Yamashita that all Ford meant to say when it held that 

“some relationships will support jurisdiction without a causal showing” 

was that jurisdiction can exist “over a class of cases for which causation 

seems particularly likely but is not always easy to prove.” Id. We then 

in Yamashita applied Ford’s test for relatedness to examine the 

plaintiff’s claims of causation and held that the district court did not err 

in dismissing for lack of personal jurisdiction when evidence of such 

causation was absent. Id. at 506–07.
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 57

(D.C. Cir. 2022).7 And no circuit appears to have concluded 

otherwise.8

7 The majority reads the Tenth Circuit’s decision in Hood v. American 

Auto Care, LLC to “prove the opposite,” i.e., that Ford does not require 

any causal connection between a defendant’s activities and harms a 

plaintiff alleges arose from or were related to them. The majority again 

marshals a clause it can quote for support but misses the forest for the 

trees. While it is true that Hood read Ford to “ma[k]e clear that a causal 

connection is not required,” 21 F.4th at 1222, it understood that causal 

analysis the same way the Ford Court did. As the Hood court explained 

just a few pages after the language the majority quotes, “Ford makes 

clear that specific jurisdiction is proper where a resident is injured by the 

very type of activity a nonresident directs at residents of the forum 

State—even if the activity that gave rise to the claim was not itself 

directed at the forum State.” Id. at 1225.

8 The majority ignores these cases (aside from Hood, which it overreads 

as noted above) and instead dials up CompuServe, Inc. v. Patterson, 89 

F.3d 1257 (6th Cir. 1996), arguing “at least one other circuit ... did not 

follow the rigid approach that Impossible X puts forth,” i.e., requiring 

some nexus between a defendant’s activities and suit-related harms. The 

majority understands the Sixth Circuit not to have required a strict 

showing of causality in a trademark declaratory judgment action where 

the defendant’s only connection with the forum was marketing his 

software product exclusively on the plaintiff’s server system. But even 

assuming the Sixth Circuit in 1996 somehow could have been applying 

that language as the Supreme Court used it in Ford Motor Company in 

2021, what the court in CompuServe actually said was that

CompuServe’s declaratory judgment action arose in 

part because Patterson threatened, via regular mail and 

electronic mail, to seek an injunction against 

CompuServe’s sales of its software product, or to seek 

damages at law if CompuServe did not pay to settle his 

purported claim. Thus, Patterson’s threats—which 
58 IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC

Lest the danger of discarding these real limits on the 

second-prong nexus analysis seem exaggerated, consider a 

hypothetical. Assume a cordwainer based in Portland, 

Maine, owns a trademark over a line of tough waterproof 

boots he calls Portland Sea-Ment. When he is not trimming 

a hide for a new pair of his boots, he spends long vacations 

at his second home in Hawaii trimming surf lines on a 

perpetual search for the perfect wave. Partway through one 

such extended vacation, he pays an influencer to post 

TikToks of himself wearing the boots in the surf of Waikiki. 

A couple weeks later, he Zooms from his lanai with a local 

REI manager to pitch his boots, but gets no traction 

because—so he is told—Hawaiians prefer flip-flops. A 

month later, he boards his flight back to Maine sunned but 

bummed that his sporadic brand-building efforts in Hawaii 

failed to make waves.

Twelve hours into his return trip, his boredom rapidly 

mounting, he begins to page through a dogeared airline 

magazine only to discover to his horror an advertisement 

from a company in Portland, Oregon, that uses a mark 

shockingly similar to his own. Upon landing, he 

immediately sends his west-coast nemesis a cease-and-desist 

letter. The parties unsuccessfully try to negotiate a 

settlement at the Oregon company’s headquarters, 

whereafter the Oregon company files a declaratory judgment 

action. 

According to the theory the majority adopts today, the 

Oregon company could file its action in Hawaii and the 

were contacts with Ohio—gave rise to the case before 

us. 

89 F.3d at 1267 (emphasis added). The Sixth Circuit’s position does not 

create a circuit split.
IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC 59

Hawaii court couldn’t boot the case—even though the only 

“enforcement” conduct giving rise to the Oregon company’s 

declaratory judgment occurred in Oregon—because of the 

cordwainer-surfer’s scattershot non-enforcement activities 

in Hawaii. Such a theory bids aloha to any semblance of 

“real limits” in analysis of the second Schwarzenegger 

prong.

* * *

Instead of deciding this case consistent with how the 

parties litigated it below, the majority has created a novel 

jurisdictional rule that is either breathtaking in scope (if you 

rely on the majority’s rationale) or hopelessly ambiguous (if 

you take seriously the majority’s multiple disclaimers). 

There was no need for the majority to do that, because 

Impossible Foods affirmatively waived the specific 

argument now imposed by the majority. Even if it had not, 

none of those non-enforcement activities satisfies either the 

first or second Schwarzenegger jurisdictional prong. And 

because of those failures, Impossible Foods’s arguments 

before us should amount to a nothingburger. The district 

court got it right, and its order should be affirmed.