43(B)log

APRIL 18, 2023

ZimVie intervened and counterclaimed for declaratory judgment of invalidity, cancellation fo the color marks registration, declaratory judgment of noninfringement, false advertising under the Lanham Act and California law, and tortious interference.

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43(B)log

AUGUST 9, 2021

2021 WL 1293839, No. Quick Box, LLC, 2021 WL 1293862, No. 7, 2021) A similar case. Bonus: Civil RICO claims survive! Fulfillment Lab, Inc., 3:20-cv-01528-H-MSB (S.D. Of course this could be revisited on summary judgment. Shockingly, civil RICO claims also survived, despite being civil RICO claims. 3:20-cv-01082-H-DEB (S.D.

False Advertising 69

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43(B)log

SEPTEMBER 13, 2021

C21-312 TSZ, 2021 WL 3930694 (W.D. 2, 2021) Rex sued Zillow and the National Association of Realtors for antitrust and false advertising violations. Surprisingly, the antitrust claims survive, as do false advertising claims agains Zillow. 2:21-cv-00012, 2021 WL 3680717 (D. Zillow Inc., Zillow, Inc.,

False Advertising 59

False Advertising Advertising Advertising Licensing 59

43(B)log

OCTOBER 4, 2021

Vining, 2021 WL 4344891, No. False advertising: This one survived: By listing LStar developments under the heading “Oak City Representative Developments,” “the proposal necessarily implies that defendant Oak City developed those properties.” LStar Development Gp., 5:20-CV-184-FL (E.D.N.C. What about injury? “[H]ere

False Advertising 59

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43(B)log

OCTOBER 11, 2021

2021 WL 4460806, No. 29, 2021) The Clorox defendants sell dietary supplements using the raw materials provided by Certified’s competitor, Avicenna. 18-cv-0744 W (KSC) (S.D. As a reminder, §1117(a) specifically also says “a violation under section 1125(a)” immediately after the quoted words.

False Advertising 59

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43(B)log

OCTOBER 12, 2021

2021 WL 4622504, No. 7, 2021) Quidel appealed the grant of summary judgment to Siemens on Quidel’s Lanham Act false advertising claims and related state claims. Quidel alleged that Siemens advertised (1) but provided (2). Also, and weird to present it this way, Siemens didn’t engage in false advertising to doctors.

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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

AUGUST 11, 2021

2021 WL 1236106, Nos. International Code Council, Inc. UpCodes, Inc., 6261 (VM) & 20 Civ. 4316 (VM) (S.D.N.Y.

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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. Select Comfort Corp. Baxter; 996 F.3d 3d 925 (8 th Cir.

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43(B)log

SEPTEMBER 29, 2021

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). It Works Marketing, Inc.

False Advertising 45

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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. That the producer defrauded consumers is of no moment for antidumping purposes, as the Department lacks jurisdiction to police false advertising violations.

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43(B)log

SEPTEMBER 17, 2021

2021 WL 2453394, No. 16, 2021) Along with breach of contract and tortious interference claims, Energizer alleged that MTA falsely advertised by selling batteries with Energizer’s mark and then by fulfilling orders with products different from those advertised and shipping batteries to consumers that were “used, aged, or tampered-with.”

False Advertising 45

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43(B)log

AUGUST 26, 2021

Arbors at California Oaks Property Owner, LLC, 2021 WL 1264423, E073950, Cal.Rptr.3d Defendants argued that common questions didn’t predominate for false advertising. Statutory false advertising is not common law fraud. The court of appeals reversed.

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43(B)log

SEPTEMBER 16, 2021

PureThink, LLC, 2021 WL 2483778, No. May 18, 2021) Neo4j specializes in graph database management systems. Summary judgment granted on state and federal false advertising claims. False designation of origin: Yep. Neo4j, Inc. 5:18-cv-07182-EJD (N.D. I still don’t know what that means, but ok.]

False Advertising 64

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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.,

False Advertising 45

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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.

False Advertising 45

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43(B)log

SEPTEMBER 7, 2023

4, 2023) McCracken alleged that SlimFast food products were falsely advertised as “CLINICALLY PROVEN [ – ] LOSE WEIGHT & KEEP IT OFF” on the front of their packaging. McCracken v. KSF Acquisition Corp., 2023 WL 5667869, No. 5:22-cv-01666-SB-SHK (C.D. The case was later dismissed after an individual settlement.)

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43(B)log

FEBRUARY 9, 2022

The Sports Mall LLC, 2021 WL 6804246, No. This alleged chutzpah triggered the false advertising element of the case. “[T]he False advertising under the Lanham Act: The court identified two theories. (1) False advertising under the Lanham Act: The court identified two theories. (1) Kevorkian v.

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43(B)log

SEPTEMBER 10, 2021

3d -, 2021 WL 2433944, No. 15, 2021) Logistick sells disposable load bars which are used to secure cargo freight during transport. AB allegedly began advertising for a similar product, claiming that its load bars have “30% more Holding Power than similar Disposable Load Bars,” allegedly an admitted reference to Logistick.

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TorrentFreak

DECEMBER 27, 2021

The suit also included a claim of false advertising after Online2LiveStream transformed itself into a scam site, offering events in exchange for credit card details but failing to deliver. On September 17, the court issued a minute order directing Triller to file either a proof of service or a status report by December 17, 2021.

Due Diligence 143

Due Diligence False Advertising Copyright Infringement Copyright 143

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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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

AUGUST 12, 2021

2021 WL 1215869, No. 31, 2021) Plaintiffs alleged that Safelite misrepresented the nature and characteristics of plaintiffs’ products to consumers in violation of the Lanham Act. Campfield v. Safelite Gp., 2:15-cv-2733 (S.D. Safelite counterclaimed for various business torts/CFAA violations. can be safe and is viable.”

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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.” CareDx’s Lanham Act claims were based on allegations that Natera falsely represented that Natera’s Prospera kidney transplant test is superior to CareDx’s Allosure Kidney test.

False Advertising 45

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43(B)log

DECEMBER 6, 2021

2021 WL 5758889, No. 3, 2021) Stout sued Grubhub over an allegedly false promise to provide “Unlimited Free Delivery” to Grubhub+ subscribers. The paradigmatic example of public injunctive relief is an injunction against false advertising aimed at the general public. Grubhub Inc., 21-cv-04745-EMC (N.D.

False Advertising 69

False Advertising Advertising Advertising 69

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. Bluegreen Vacations Unlimited, Inc. Timeshare Lawyers P.A.,

False Advertising 72

False Advertising Advertising Advertising Contracts 72

43(B)log

AUGUST 16, 2021

City of Pasadena, 2021 WL 3553499, No. 12, 2021) For over a century, PTRA has hosted the Rose Parade and Rose Bowl Game as part of its annual New Year’s Day Celebration. This also got rid of the breach of contract claim, which was based on the alleged trademark infringement and false advertising.

Fair Use 94

Fair Use False Advertising Intellectual Property Ownership 94

43(B)log

AUGUST 26, 2021

Smash My Trash, LLC, 2021 WL 3354839, No. 2, 2021) Allied, aka Republic, “provides waste and recycling services to business and residential customers in the Kansas City metropolitan area.” Republic alleged tortious interference, trespass/conversion, and false advertising claims. Allied Servs., 21-cv-00249-SRB (W.D.

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43(B)log

AUGUST 23, 2021

20-16138, Fed.Appx. -, 2021 WL 963782 (9 th Cir. 15, 2021) ThermoLife got a significant success in this appeal of the dismissal of its false patent marking, false advertising, and unfair competition claims. Thermolife Int’l, LLC v. Compound Solutions, Inc., Was TL allowed to sue under Lexmark ?

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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.

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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 30, 2021

Pandora Marketing, LLC, 2021 WL 1573073, CV 20-5486 DSF (ADSx) (C.D. 12, 2021) Another timeshare company v. Regardless of which standard applied, Diamond successfully alleged contributory false advertising. Diamond Resorts U.S. Collection Development, LLC v. timeshare exit company case.

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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? A jury found defendants liable for false advertising through a purportedly unbiased, independent site. Grasshopper House, LLC v. 19-56008, No. 19-56072, Fed.Appx. - (9 th Cir.

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43(B)log

SEPTEMBER 24, 2021

2021 WL 1893074, No. May 11, 2021) Facebook’s application of “Russia state-controlled media” label to a news page on Facebook was not commercial advertising or promotion. Mentioned here mostly to highlight the differences in pleading standards applied to trademark and false advertising claims. Maffick LLC v.

Advertising 59

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Patently-O

FEBRUARY 12, 2023

1125(a)(1) for misrepresentation of sponsorship (False Advertising + False Association). 2021), cert. 22, 2021). In Gibson , the plaintiffs have sued under both the Lanham Act and N.C. state law: Section 43 of the Lanham Act, 15 U.S.C. common law right of privacy – misappropriation. Defamation. 2d 352 (Nov.

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Privacy False Advertising Advertising Advertising 119

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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