43(B)log

DECEMBER 15, 2023

2023 WL 8586681, No. 8, 2023) When does TM logic creep into false advertising cases? The screenshot was “commercial advertising or promotion.” Faire Wholesale, Inc. Tundra, Inc., 23-cv-02538-JSC (N.D. Faire operates an online marketplace connecting wholesalers with retailers.

False Advertising 59

False Advertising Advertising Advertising Branding 59

JD Supra Law

JUNE 22, 2023

In a case originally based on a false advertising claim under § 43(a) of the Lanham Act, the US Court of Appeals for the Ninth Circuit affirmed in part, reversed in part and remanded the district court’s dismissal of the claim. June 2, 2023) (Clifton, Bumatay, By: McDermott Will & Emery Enigma Software Group USA, LLC v.

False Advertising 52

False Advertising Advertising Advertising 52

43(B)log

MARCH 16, 2023

2023 WL 2504988, No. 13, 2023) Previous district court ruling on irreparable harm ; previous 9 th Cir. Despite Romag , the court declines to award disgorgement or fees in this false advertising case. The jury found that the defendants had engaged in false advertising, and the court enjoined them from specified conduct.”

False Advertising 59

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43(B)log

DECEMBER 22, 2023

2023 WL 8811499, No. 20, 2023) The court denies settlement approval in this case alleging that Macy’s misrepresented the thread count in some of the sheets it sold, because it doesn’t like the cy pres part of the remedy. You might think that class action rules can be a bit like Calvinball, and I'd be hard pressed to disagree.

False Advertising 59

False Advertising Advertising Advertising Settlement 59

43(B)log

APRIL 18, 2023

2023 WL 2918724, No. 12, 2023) Following a large verdict for Monster on false advertising claims, this opinion discusses extensively the requirements for injunctive relief in false advertising cases. Vital Pharmaceuticals, Inc., EDCV 18-1882 JGB (SHKx) (C.D. So too with lost market share.

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False Advertising Advertising Advertising Social Media 56

43(B)log

MARCH 3, 2023

2023 WL 2298748, 2022-1433 (Fed. 1, 2023) Discussion of some district court proceedings here. TRUSTID lost both patent infringement and Lanham Act false advertising claims. The jury found Next Caller’s 10 percent IVR containment statements to be literally, and willfully, false, awarding $1.44 TRUSTID, Inc.

False Advertising 59

False Advertising Advertising Advertising Patent Infringement 59

43(B)log

MAY 22, 2023

2023 WL 3510374, No. May 17, 2023) The court grants these timeshare plaintiffs’ motion for a bench trial, ruling that the Seventh Amendment doesn’t guarantee a jury trial in a false advertising case where the plaintiffs seek only equitable remedies. Bluegreen Vacations Unlimited, Inc. Timeshare Lawyers P.A.,

False Advertising 59

False Advertising Advertising Advertising Law 59

43(B)log

APRIL 25, 2023

BBK Tobacco & Foods, LLP, 2023 WL 3004625, No. 19, 2023) Previous discussion. Republic alleged that HBI, its competitor in the tobacco rolling paper industry, engaged in false advertising under the Lanham Act, unfair competition, and violations of the IUDTPA. Republic Technologies (NA), LLC v. 16 C 03401 (N.D.

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False Advertising Advertising Advertising Law 59

43(B)log

FEBRUARY 16, 2024

30, 2024) (R&R) Recommendation: Dastar should block Qingdao’s Lanham Act false advertising counterclaims based on Lashify’s claim to be the originator of lash technology, but false patent marking counterclaims should survive. 11, 2023 (claiming that various products were “patented”). 1, 2017 to Apr.

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False Advertising Advertising Advertising Patent 59

43(B)log

APRIL 26, 2023

4th -, 2023 WL 3070085, No. 25 2023) Previous district court opinion allowing Lanham Act false advertising claims to proceed against Microsoft; applying the Article III analysis that doesn’t (yet?) TocMail launched its IP-evasion product, got a patent, and then sued Microsoft for false advertising—all within two months.”

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False Advertising Advertising Advertising IP 59

43(B)log

OCTOBER 9, 2023

Lei, 2023 WL 6373073, No. 21, 2023) Deetsch alleged that he owned design patents for CPAP pillow products, which the Lei defendants infringed. Amazon’s Brand Registry advertises “Automated Protections” that are “[p]owered by Amazon’s Machine Learning.” 22-cv-1166-RSH-BLM (S.D. Motion to dismiss granted.

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43(B)log

OCTOBER 18, 2024

Defendants allegedly copied key components of Trackman’s copyrighted software and falsely suggested, in promotions and advertisements, that defendants were authorized to use the well-known courses in their game. Although the court dismissed a contract claim, copyright and false advertising claims survived.

False Advertising 52

False Advertising Contracts Advertising Advertising 52

43(B)log

OCTOBER 9, 2023

2023 WL 6381821, No. 28, 2023) Cap Export alleged that Zinus fraudulently obtained a patent after Zinus used the public domain bed-in-a-box sets of a non-party as the basis for its patent application. Cap Export, LLC v. Zinus, Inc., 2:21-cv-07148-JWH-MRWx (C.D.

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False Advertising Patent Infringement Patent Advertising 104

43(B)log

SEPTEMBER 7, 2023

2023 WL 5667869, No. 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., 5:22-cv-01666-SB-SHK (C.D.

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False Advertising Advertising Advertising Settlement 59

43(B)log

DECEMBER 18, 2023

2023 WL 8697700, No. False advertising: The use of a Simpson part as a reference number was not a necessary implication that the MiTek parts were equivalent and substitutable in all respects; one reasonable interpretation was that the products were generally suited to the same application or function and should be compared.

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43(B)log

JULY 24, 2023

2023 WL 4681569 , No. But the FDA, independent reviews at scientific journals, and even some of Amgen’s own employees criticized the advertising claims as unsupported and misleading. According to Defendant’s internal memoranda, the advertising campaign was designed to “optimally position Onpro in [the] face of biosimilar competition.”

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43(B)log

MARCH 14, 2023

2023 WL 2466624, No. 10, 2023) FedEx uses around 4500 independent contractors (ISPs) to pick up and deliver packages. Was this “commercial advertising or promotion”? Ah, how I wish courts would apply the same scrutiny to trademark harm stories. FedEx Ground Package System, Inc. Route Consultant, Inc., 3:22-cv-00656 (M.D.

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Indiana Intellectual Property Law

MAY 31, 2024

Eli Lilly and Company has reached a settlement with Totality Medispa , a South Carolina -based medical spa, after filing lawsuits in late 2023.

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False Advertising Advertising Advertising Settlement 52

JD Supra Law

DECEMBER 4, 2023

In particular, on November 2, 2023, Administrative Law Judge Moore denied a complainant’s motion seeking leave to amend its complaint to add false advertising claims in the 1313 investigation. This month’s International Trade Commission wrap-up focuses on the circumstances in which a complainant can amend its complaint.

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False Advertising Advertising Advertising Law 64

43(B)log

MAY 8, 2023

The Roundtable will be held on Friday, October 6, 2023. We invite submissions from academics working on any aspect of trademark, false advertising, marketing, right of publicity, or related areas of the law. The Roundtable will cover the travel and lodging expenses for invited authors.

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Trademark False Advertising Advertising Advertising 72

43(B)log

MARCH 22, 2023

Trademark and Unfair Competition Scholarship Roundtable 2023 The Trademark and Unfair Competition Scholarship Roundtable co-hosted by Harvard, NYU, and the University of Pennsylvania will take place in person hosted this year at NYU. The Roundtable will be held on Friday, October 6, 2023.

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43(B)log

FEBRUARY 16, 2023

3d -, 2023 WL 1818137 (W.D. 8, 2023) Chen alleged that Sur La Table violated the Washington Commercial Electronic Mail Act (CEMA) and the Washington Consumer Protection Act (CPA) by transmitting at least 22 commercial emails with purportedly false or misleading information in their subject lines. Sur La Table, Inc.,

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False Advertising Advertising Advertising Law 45

43(B)log

SEPTEMBER 22, 2023

4th -, 2023 WL 5925977, No. 12, 2023) Discussion of opinion below. Geomatrix, LLC v. NSF International, F.4th 22-1947 (6th Cir. Geomatrix sells a septic system that substantially differs from those sold by its competitors.

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False Advertising Advertising Advertising Business 59

43(B)log

NOVEMBER 6, 2023

Edgewell Personal Care, LLC, 2023 WL 713094, No. 30, 2023) Richardson brought NYGBL claims against Edgewell’s “Reef Friendly*” and “*No Oxybenzone or Octinoxate”/“*Hawaii Compliant: No Oxybenzone or Octinoxate” sunscreens, alleging that the products contain other reef-harming ingredients. Richardson v. 23-128 (2d Cir.

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False Advertising Advertising Advertising 49

43(B)log

MAY 22, 2023

2023 WL 3535386, No. May 18, 2023) New Vision, an eye-care professional and provider of optical goods and services, including contact lens fittings and contact lens sales with seven brick-and-mortar locations and two websites, brought a putative class action against four online contact-lens retailers for Lanham Act false advertising.

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False Advertising Advertising Advertising Publishing 45

Technology & Marketing Law Blog

MARCH 6, 2023

The false advertising claim fails because Lops didn’t show that the videos “are commercial speech and made for the purpose of influencing consumers to buy YouTube’s goods or services.” YouTube, LLC, 2023 WL 2349597 (D. March 3, 2023). ” Lops also had an unsuccessful lawsuit against Facebook.

Trademark 105

Trademark False Advertising Advertising Advertising 105

43(B)log

JANUARY 11, 2023

2023 WL 139714, No. 9, 2023) Along with updating its previous decision (I didn’t see anything that affected the Lanham Act analysis of the key issue of whether a retailer can sue a supplier for false advertising), the court addressed a motion to dismiss by defendant ViaClean. AHBP LLC v. SA-22-CV-00096-XR (W.D.

Advertising 59

Advertising Advertising False Advertising Marketing 59

43(B)log

APRIL 26, 2023

LLC, 2023 WL 3066119, No. 24, 2023) “This case arises out of alleged misuse of copyrighted images, eventually leading to a dispute … that resulted in false business reviews, malicious e-mails, and mutual efforts to interfere with each other’s business.” I Dig Texas, LLC v. Creager Servs., 22-CV-0097-CVE-JFJ (N.D.

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Technology & Marketing Law Blog

JUNE 8, 2024

This case hit my alerts because of its discussion about keyword advertising, but first, I have to digest how the court got there. In an April 2023 summary judgment ruling , the plaintiff established that it “possesses the legally protectable, incontestable trademarks TEXAS TAMALE and TEXAS TAMALE COMPANY.” ” Say what?

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Trademark Advertising Advertising False Advertising 129

43(B)log

APRIL 17, 2023

LLC, 2023 WL 2933464, No. 13, 2023) I don’t usually blog default cases because there’s usually little legal analysis; this case is an exception around the fraught area of first sale, showing unusual diligence by the court. Quincy Bioscience, LLC v. BRYK Enters., 22-cv-658-jdp (W.D. Even after default.

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False Advertising Advertising Advertising Trademark 45

Technology & Marketing Law Blog

MAY 13, 2023

For more background on competitive keyword advertising by lawyers, see this article. 2023 WL 3340214 (W.D. May 10, 2023) More Posts About Keyword Advertising * Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v. Allied Modular * Griper’s Keyword Ads May Constitute False Advertising (Huh?)

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Law Advertising Advertising False Advertising 105

43(B)log

JUNE 26, 2023

Advanced Enzymes USA, 2023 WL 4105345, No. 21, 2023) WNI and defendants AST/Specialty sell enzyme supplement products. Relevant background: more than 20 years ago, WNI purchased an enzyme blend in bulk from Specialty; it got sued for falsely advertising a product sourced from as containing enteric coated serrapeptase.

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False Advertising Advertising Advertising Business 64

IP Watchdog

JULY 23, 2024

After filing 13 lawsuits in 2023 claiming trademark infringement, deceptive trade practices, and false advertising related to the pharmaceuticals Ozempic and Wegovy, Novo Nordisk—a 100-year-old pharmaceutical company with its origins in Denmark—is once again making headlines.

Cease and Desist 59

Cease and Desist False Advertising Trademark Advertising 59

43(B)log

SEPTEMBER 6, 2023

LLC, 2023 WL 5229803, No. 15, 2023) Lokring sells fittings for pipes and other transfer systems for fluids and gases, as well as tools used to install them. Shepard & Assoc., Lokring Tech., 1:20-cv-02488 (N.D. Its distributors have exclusive territories. Shepard was an exclusive distributor, but the relationship broke down.

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False Advertising Advertising Advertising Designs 45

Patently-O

FEBRUARY 12, 2023

2023) involves a set of thirteen different professional models whose images were allegedly used without their permission to advertise for the Capital Cabaret, a strip club halfway between Raleigh & Durham, North Carolina. 1125(a)(1) for misrepresentation of sponsorship (False Advertising + False Association).

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Privacy False Advertising Advertising Advertising 119

43(B)log

DECEMBER 15, 2023

2023 WL 8604148, No. 12, 2023) The parties are compounding pharmacies that focus on medications used in optometry and ophthalmology. Injury: Injury too could not be presumed despite the fact that the parties were direct competitors; this wasn’t false comparative advertising. ImprimisRx, LLC v. 21-cv-01305-BAS-DDL (S.D.

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False Advertising Advertising Advertising Marketing 45

43(B)log

JUNE 26, 2023

3d -, 2023 WL 2720805, No. 30, 2023) This is fallout from one of the many right of publicity etc. lawsuits against clubs for advertising them with images of models without those models’ consent. Covered personal/advertising injury included d. The use of another’s advertising idea in your “advertisement”; or g.

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Advertising Advertising False Advertising Intellectual Property 56