Impossible Foods Inc. v. Impossible X LLC

                    FOR PUBLICATION

          UNITED STATES COURT OF APPEALS
               FOR THE NINTH CIRCUIT

IMPOSSIBLE FOODS INC.,                           No. 21-16977

                 Plaintiff-Appellant,              D.C. No.
                                                5:21-cv-02419-
    v.                                               BLF

IMPOSSIBLE X LLC,
                                                   OPINION
                 Defendant-Appellee.

          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 self-
described “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 plant-
based 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 all-
caps 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 

. We review de novo the district
court’s dismissal for lack of personal jurisdiction. Ayla, LLC
v. Alya Skin Pty. Ltd., 

, 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., 

 (2021); Burri L. PA v. Skurla, 

 (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., 

 (9th Cir. 2022)
(quoting Walden v. Fiore, 

 (2014)); see
also Int’l Shoe Co. v. Washington, 

, 316–17
(1945). Because California courts may exercise jurisdiction
on any basis not inconsistent with due process, 

, 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, 

 (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., 

 (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 

 (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, 

(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, 

. 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., 

. 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., 

 (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, 

 (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, 

, 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, 

 (9th Cir. 2022) (citing Yee
v. City of Escondido, 

 (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, 

 (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!, 

. 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., 

, 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, 

 (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., 

 (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, 

 (9th Cir. 2023);
Herbal Brands, Inc. v. Photoplaza, Inc., 

,
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, 

; see also
Freestream Aircraft, 

 (similar); Davis v.
Cranfield Aerospace Sols., Ltd., 

 (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, 

. 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, 

 (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, 

 (quoting Burger King Corp.
v. Rudzewicz, 

 (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, 

(quoting Goodyear, 

). 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!, 

 (“[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, 

 (quoting Ballard, 

). Runyon and Impossible X’s dedicated multi-
year “base” in the forum and extensive promotional
activities in California were not merely “‘random,’
‘fortuitous,’ or ‘attenuated’ contacts.” Burger King, 

 (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, 

 (1980)).
    The dissent argues that Impossible X’s trademark-
building 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, 

; Global Commodities, 

; Freestream Aircraft, 

.
    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, 

 (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., 

 (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,

 (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, 

.
    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.” 

. 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.”

. 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., 

 (quoting Bristol-Myers Squibb Co. v. Superior
Ct. of Cal., S.F. Cnty., 

 (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., 

. 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.” 

 (quoting Lake v.
Lake, 

 (9th Cir. 1987)). Conversely, a
stronger showing of purposeful contacts with the forum state
“will permit a lesser showing” of relatedness to the litigation.

 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., 

 (quoting World-
Wide 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 non-
infringement. 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., 

 (Fed. Cir. 2011).
Similarly, in Avocent Huntsville Corp. v. Aten International
Co., 

 (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.”

. 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.” 

 (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, 

, 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 

 at 1334–36 (citing past Federal
Circuit precedents); see also Trimble Inc. v. PerDiemCo
LLC, 

, 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 bright-
line 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.” 

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

 (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, 

, 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., 

, 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., 

 (9th Cir. 2022) (citing cases). Our multi-factor test for
analyzing trademark infringement, see AMF Inc. v.
Sleekcraft Boats, 

, 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, 

 (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.” 

 at 1025
(quoting Bristol-Myers, 

). 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., 

(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, 

; 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, 

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

 (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. 

.
    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, 

. 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, 

 (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, 

)). 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,

.
    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, 

(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.” 

. 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 enforcement-
actions-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, 

(2019) (quoting 

(a)), “only use in the
marketplace can establish a mark.” Miller v. Glenn Miller
Prods., Inc., 

, 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, 

 (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.” 

. As we have explained, after Ford “a claim can
relate to” a defendant’s forum contacts “even absent
causation.” Yamashita v. LG Chem, Ltd., 

, 505
             IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X LLC                   33


(9th Cir. 2023).2 Through the application of rigid patent-
based 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, 

.
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 non-
infringement. 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, 

(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., 

 (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., 

 (quoting Bristol-Myers, 

).
    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, 

. 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 forum-
related 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., 

 (emphasis added) (quoting
Bristol-Myers, 

). 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, 

. 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., 

 (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, 

 (quoting
Panavision Int’l, L.P. v. Toeppen, 

 (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.” 

(alterations omitted) (quoting Sinatra, 

).
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 business-
generating 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, 

 (9th
Cir. 2023). And here, Impossible Foods did not simply fail
to make an argument below that Impossible X’s brand-
building 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. 

,
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, 

 (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.

 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, 

 (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. 

, 1054 (9th
Cir. 2007). Panels applying Community House have not diverged from
this straightforward interpretation. See, e.g., Tarabochia v. Adkins, 

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

, 1035 (9th Cir. 2023).            And settlement
discussions were not initiated in California.3
    Instead, the majority concludes that Impossible X’s non-
enforcement 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, 

, 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, 

 (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, 

 (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., 

 (9th Cir. 2023); Williams
v. Yamaha Motor Co. Ltd., 

, 1020–22 (9th Cir.
2017); Ranza v. Nike, Inc., 

, 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, 

 (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., 

 (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., 

, 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, 

 (quoting Goodyear, 

).
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. 

. 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, 

 (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, 

 (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, 

, 208 (3d Cir. 2021);
see also LNS Enters. LLC v. Cont’l Motors, Inc., 

 (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., 

 (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.,

 (Fed. Cir. 2012). Non-enforcement
activities do not. Prasco, LLC v. Medicis Pharm. Corp., 

 (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, 

 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, 

 (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.” 

; accord
County of San Mateo v. Chevron Corp., 

, 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. 

. “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,

 (1st Cir. 2022); Johnson v.
TheHuffingtonPost.com, 

, 324–25 (5th Cir.
2021); In re Sheehan, 

, 526 (7th Cir. 2022);
Hood v. Am. Auto Care, LLC, 

 (10th Cir.
2021); Herederos De Roberto Gomez Cabrera, LLC v. Teck
Res. Ltd., 

, 1310–11 (11th Cir. 2022);
Bernhardt v. Islamic Republic of Iran, 

, 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.” 

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.” 

 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. 

 at 506–07.
             IMPOSSIBLE FOODS, INC. V. IMPOSSIBLE X 

(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, 

 (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.

 (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.