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

False Advertising Advertising Advertising Contracts 59

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

False Advertising Advertising Advertising Social Media 45

43(B)log

OCTOBER 25, 2021

Amazon.com, 2021 WL 4819602, No. 20-01628, 2021 WL 1549667, at *2 (E.D. 20, 2021).” [No That’s kind of the point of false advertising law generally, and certainly the “Made in the USA” cases make clear that deviation from what you were promised as part of the bargain is a potential cause of economic loss.

False Advertising 69

False Advertising Advertising Advertising Ownership 69

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.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

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

False Advertising Advertising Advertising Trademark 59

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

False Advertising Advertising Advertising Contracts 45

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

False Advertising Advertising Advertising Design 69

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.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

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.

False Advertising 45

False Advertising Advertising Advertising Contracts 45

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.

False Advertising 45

False Advertising Advertising Advertising Law 45

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

False Advertising Advertising Advertising Trademark 45

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.)

False Advertising 59

False Advertising Advertising Advertising Settlement 59

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.

False Advertising 59

False Advertising Advertising Advertising Business 59

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

False Advertising Advertising Advertising Marketing 45

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.

False Advertising 59

False Advertising Advertising Advertising Copyright 59

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.

False Advertising 59

False Advertising Advertising Advertising Trademark 59

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

False Advertising Advertising Advertising Licensing 64

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.

False Advertising 45

False Advertising Advertising Advertising Patent 45

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.

False Advertising 83

False Advertising Copying Advertising Advertising 83

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.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

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.”

False Advertising 59

False Advertising Advertising Advertising Marketing 59

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

False Advertising 59

False Advertising Contracts Advertising Advertising 59

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

False Advertising Advertising Advertising Copying 45

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.

False Advertising 59

False Advertising Cease and Desist Advertising Advertising 59

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.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

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 ?

False Advertising 59

False Advertising Advertising Advertising Invention 59

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

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.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

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

Advertising Advertising False Advertising Business 59

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 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.

False Advertising 72

False Advertising Advertising Advertising Business 72

Fish & Richardson Trademark & Copyright Thoughts

OCTOBER 8, 2021

Managing Intellectual Property (MIP) magazine recently recognized Fish & Richardson Associate Vivian Cheng as one of its 2021 “Rising Stars.”

Intellectual Property 40

Intellectual Property False Advertising Litigation Advertising 40

43(B)log

MARCH 6, 2024

1, 2024) NYU Langone sued Northwell for trade dress infringement, unfair competition and false designation of origin, and false advertising under the Lanham Act, as well as related claims under the New York GBL and New York common law. The court dismissed the complaint—the false advertising claims with prejudice.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

FEBRUARY 23, 2024

21, 2024) ECRI and its CEO sued Ferens, a former ECRI employee, for various things including defamation, IIED, violations of trade secret law, and Lanham Act false advertising. ECRI provides healthcare products and services; Ferens was a former high-level ECRI employee who served as Area Vice President until his 2021 termination.

Advertising 59

Advertising Advertising False Advertising Law 59

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.

False Advertising 69

False Advertising Advertising Advertising Trademark 69

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.

False Advertising 59

False Advertising Advertising Advertising Marketing 59