43(B)log

NOVEMBER 19, 2021

United States, 2021 WL 5371406, No. 18, 2021) I can’t improve upon the court’s excellent summary and won’t try, instead joining in the call for FTC/AGs etc. 18, 2021) I can’t improve upon the court’s excellent summary and won’t try, instead joining in the call for FTC/AGs etc. market to the detriment of domestic industry.

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43(B)log

SEPTEMBER 29, 2021

It Works Marketing, Inc. 2021 WL 1650266, No. 27, 2021) It Works is a MLM company that sells health and beauty products that requires distributors to sign a noncompete agreement and provides for arbitration (which allows “any party” to sue in court for IP claims, practically meaning that It Works can choose to sue if it wants).

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43(B)log

SEPTEMBER 28, 2021

Roach, 2021 WL 4134836, No. 1, 2021) Entrepreneur, a frequent trademark claimant, sought to amend its complaint and add new parties to the TM claims here. Entrepreneur’s desire to bring forth a claim for false advertising against a competitor in a similar market is not unusual behavior.” Entrepreneur Media, Inc.

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43(B)log

SEPTEMBER 28, 2021

CV 20-9482-DMG (ASx), 2021 WL 4134841 (C.D. 6, 2021) VFB sued MPL for Lanham Act, UCL, and FAL violations based on MPL’s “vampiro” cocktail. Unsurprisingly, the trademark claims survive a motion to dismiss, but associated false advertising claims don’t. Vampire Family Brands, LLC v. MPL Brands, Inc.,

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43(B)log

AUGUST 27, 2021

19-62225-CIV-ALTMAN, 2021 WL 810279 (S.D. 3, 2021) Sometimes I worry that judicial writing is tending too much towards the flip as it moves away from prolixity, but this is a lovely example of how clear language can be deployed: If you want to build with plywood in the United States, you generally need a certification— called a PS 1-09 stamp.

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43(B)log

SEPTEMBER 22, 2021

2021 WL 765293, No. 26, 2021) The parties compete to sell protein powder to consumers. SI03 originally sued for false advertising and related claims, and Musclegen counterclaimed similarly. SI03, Inc. Musclegen Research, Inc., 1:16-CV-274 RLW (E.D.

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43(B)log

SEPTEMBER 9, 2021

2021) You probably know that the court of appeals sent this case back for retrial on an initial interest confusion theory. I won’t say much about that, though I do have a big question, but there are also false advertising aspects of the case. The parties compete in the market for adjustable air mattresses and related products.

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43(B)log

AUGUST 20, 2021

Holsinger, 2021 WL 3617153, No. 16, 2021) Roof Maxx distributes “a soy-based liquid product that is sprayed on asphalt shingle roofs to extend the life of the shingles.” Shingle Savers counterclaimed, alleging, among other things, false advertising under the Lanham Act and violation of the Ohio Deceptive Trade Practices Act.

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43(B)log

NOVEMBER 27, 2023

Marketing, Sales Practices & Products Liab. SoClean is a dominant player in the market for medical devices that sanitize continuous positive airway pressure machines (CPAPs), which treat sleep apnea and respiratory conditions. And, they continued, SoClean was illegally marketing its devices. In re SoClean, Inc., 22-542 (W.D.

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Delaware Intellectual Property Litigation Blog

MAY 15, 2021

May 7, 2021), the Court granted Natera’s motion to exclude at trial the opinions of CareDx’s damages expert relating to “corrective advertising damages.” 1117(a)(2), a successful false advertising plaintiff can recover the costs of any completed advertising that actually and reasonably responds to the defendant’s offending ads.’” Id.

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43(B)log

JANUARY 3, 2024

I’m only going to discuss the false association/false advertising bits; as to the latter, state law provides more protection than federal because of the “commercial advertising or promotion” requirement for Lanham Act false advertising. The false association/coordinate state law claims survived.

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43(B)log

SEPTEMBER 30, 2021

2021 WL 1580827, No. 22, 2021) I find the vanilla class actions fascinating because they are starting to reject surveys, pushing this area of the law towards a normative vision of what’s misleading to a reasonable consumer. Westbrae Natural, Inc., 20-cv-03221-JSC (N.D. Such an inference is just too far a reach.”

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43(B)log

SEPTEMBER 21, 2021

3d -, 2021 WL 790638 (S.D.N.Y. 26, 2021) These are two putative class actions against Columbia and Pace based on allegedly broken promises due to the pandemic. In re Columbia Tuition Refund Action, No. 20-CV-3208 (JMF) & 20-CV-3210 (JMF), F.Supp.3d

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Technology & Marketing Law Blog

DECEMBER 19, 2021

Yes, this was a 2021 decision. You can see Seeking Arrangements’ ad (highlighted) showing above Luxy’s own ad and mixed in with ads for unrelated products: The court says: Plaintiffs’ advertisement does not contain the word “Luxy” or appear to cause any more confusion than the other three advertisements.

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43(B)log

FEBRUARY 16, 2023

7, 2023) Navatar sued for state and federal false advertising, as well as commercial defamation, injurious falsehoods, unfair competition. The “touchstone” is “that the contested representations are part of an organized campaign to penetrate the relevant market. Navatar Group, Inc. DealCloud, Inc., 2023 WL 1797266, No.

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43(B)log

SEPTEMBER 14, 2021

Trade Data Monitor, LLC, 2021 WL 2134909, No. May 21, 2021) A trade secret/similar case in which IHS owns a database called Global Trade Atlas, which it acquired from the people who founded defendants, and you can basically guess what happened next. IHS Global Ltd. 2:18-cv-01025-DCN (D.S.C.

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43(B)log

NOVEMBER 19, 2021

6:21-cv-326-MC, 2021 WL 5316986 (D. 15, 2021) Previous motion to dismiss. Plaintiff attempted to plead that a small number of calls to people contracting with it constituted “commercial advertising or promotion,” but the court still didn’t buy it. Meredith Lodging LLC v. Vacasa LLC, No. In Grubbs v. Sheakley Grp.,

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43(B)log

AUGUST 16, 2021

2021 WL 3552175, No. 11, 2021) Another timeshare versus timeshare exit false advertising case. Marketing Defendants allegedly falsely advertise timeshare exit services by promoting a legitimate process to exit timeshare contracts. This opinion considered only the marketing defendants.

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43(B)log

SEPTEMBER 30, 2021

Pandora Marketing, LLC, 2021 WL 1573073, CV 20-5486 DSF (ADSx) (C.D. 12, 2021) Another timeshare company v. Here, Diamond sued both the marketers who seek exit clients and also the lawyers who worked with them. Diamond Resorts U.S. Collection Development, LLC v. timeshare exit company case.

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43(B)log

SEPTEMBER 16, 2021

6:21-cv-326-MC, 2021 WL 2546273 (D. 21, 2021) The parties compete to manage vacation rental properties located in Oregon. The court found that the alleged statements weren’t “commercial advertising” covered by the Lanham Act. The court found that the alleged statements weren’t “commercial advertising” covered by the Lanham Act.

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43(B)log

SEPTEMBER 3, 2021

2021 WL 2662064, No. 29, 2021) CHD, an anti-vaccination group (that also considers pesticides and wireless tech dangerous), sued Facebook and other defendants for violating the First and Fifth Amendments, Lanham Act false advertising, and RICO violations. Children’s Health Defense v. Facebook Inc., 20-cv-05787-SI (N.D.

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43(B)log

SEPTEMBER 27, 2021

2021 WL 4149782, No. 13, 2021) Not having a materiality or harm requirement really makes a difference in trademark cases compared to false advertising cases—look at the reasons this false advertising claim fails. AFC sued MedHelp for Lanham Act false advertising. American Family Care, Inc.

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43(B)log

SEPTEMBER 23, 2021

Fed.Appx. -, 2021 WL 2025153, No. May 21, 2021) The parties compete in the market for medical devices that sanitize continuous positive airway pressure machines (CPAPs), which treat sleep apnea and respiratory conditions. SoClean controls approximately ninety percent of the market while 3B controls about five percent.

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43(B)log

OCTOBER 29, 2021

11, 2021) A rare bankruptcy/false advertising interaction. Of relevance here, Everlog argued that the false advertising damages were nondischargeable in bankruptcy. BTL argued that summary judgment was inappropriate because the district court didn’t consider whether the false advertising was “malicious.”

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43(B)log

SEPTEMBER 6, 2021

Clean & Sober Media, LLC, 2021 WL 3702243, No. Is that true for false advertising plaintiffs? Here, the parties compete in the market for addiction treatment. A jury found defendants liable for false advertising through a purportedly unbiased, independent site. Grasshopper House, LLC v. 19-56008, No.

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43(B)log

AUGUST 25, 2021

2021 WL 930453, No. 11, 2021) Previous opinion. This was allegedly still false and misleading, and First Databank allegedly falsely advertised that it “compile[s]” the relevant information in its database and for its coding determinations from the FDA and from manufacturers, such as Alfasigma. Alfasigma USA, Inc.

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43(B)log

SEPTEMBER 15, 2021

3:20-CV-929 JD, 2021 WL 3887243 (N.D. 31, 2021) Plaintiffs “have an interest in a patented computer program that allows medical professionals to more easily determine the correct way to position bones for optimal healing after orthopedic procedures.” I’m only going to discuss the false advertising aspects.

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43(B)log

DECEMBER 23, 2021

2021 WL 6049964, No. 12, 2021) After Lexmark , can a competitor bring a false association claim when the false association is with an unrelated third party? This court answers yes, though limits the effect of that by applying what looks like ordinary false advertising analysis. FireBlok IP Holdings, LLC v.

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43(B)log

AUGUST 20, 2021

Winder Laboratories, LLC, 2021 WL 3573118, No. 17, 2021) Concordia makes DONNATAL, a combination of phenobarbital and belladonna alkaloids (PBA) used to treat irritable bowel syndrome (IBS) and acute enterocolitis. They are therefore allowed on the market during the DESI review pendency and qualify as pharmaceutically equivalent.

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Technology & Marketing Law Blog

SEPTEMBER 18, 2023

This case involves Jim Adler, a/k/a the “Texas Hammer,” a Texas lawyer who has spent $100M+ on advertising to build his brand. In particular, Adler highlights that “from 2018-2021, there were 1,595 instances of callers mentioning ‘Jim Adler’ or ‘The Texas Hammer’ in the defendants’ call logs.”

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Advertising Advertising False Advertising Trademark 84

43(B)log

SEPTEMBER 16, 2021

In re Coca-Cola Products Marketing & Sales Practices Litig. (No. II), 2021 WL 3878654, No. 31, 2021) The Ninth Circuit limits its injunctive relief standing jurisprudence in light of TransUnion. 20-15742 (9 th Cir. no preservatives added.

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43(B)log

SEPTEMBER 14, 2021

2021 WL 2188219, No. May 28, 2021) The parties “compete in the at-home fitness market and offer products that allow consumers to attend live and on-demand fitness classes from home.” I’m only addressing ICON’s counterclaims for false advertising, not the patent part of the ruling. Peloton Interactive, Inc.

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43(B)log

SEPTEMBER 21, 2021

2021 WL 810228, No. 3, 2021) Plaintiffs alleged false advertising of TTE’s TVs in violation of California and New Jersey law; the court granted the motion to dismiss but allowed leave to amend as to injunctive relief claims. The TVs weren’t allegedly worthless if truthfully advertised. TTE Technol.,

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Technology & Marketing Law Blog

AUGUST 17, 2021

However, “[b]ecause meta tags direct internet traffic and are invisible to the internet user (absent the user taking additional steps), meta tags are similar to keyword advertising” (citing a non-precedential metatags opinion from 20 years ago). It’s 2021 FFS. McNeil Consultants, LLC , 2021 WL 3508713 (5th Cir.

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43(B)log

FEBRUARY 26, 2024

23, 2024) Plaintiffs alleged that defendants conspired to inflate the US News ranking of USC Rossier School of Education by submitting inaccurate or incomplete data to US News and market the resulting ranking to the public. During the relevant period—through 2021—US News didn’t distinguish between in-person and online programs.

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Indiana Intellectual Property Law

MARCH 7, 2023

for trademark infringement, false advertising and patent infringement. The Muscle Stimulator is marketed and sold as a non-invasive device that uses electromagnetic energy to stimulate muscle contraction, and it is intended for use in body contouring and muscle strengthening applications.

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43(B)log

MARCH 18, 2022

Fresh Bourbon allegedly falsely advertises that Fresh Bourbon is the “first black-owned bourbon distillery in Kentucky,” and makes other related false claims, which is allegedly false because it’s not a distillery, which requires both federal (TTB) and Kentucky (KABC) licenses. POM Wonderful LLC v. Coca-Cola Co.,

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