43(B)log

JUNE 10, 2024

4, 2024) Finding Zesty Paws’ “#1 Brand” claim literally false, the court grants a preliminary injunction despite Zesty Paws’ attempt to create a factual dispute about what a “brand” is. The dispute turned on what a “brand” is; Zesty Paws argued that Nutramax was not a brand, but Cosequin etc. Nutramax Labs.,

Branding 72

Branding Branding Brands Marketing 72

SpicyIP

DECEMBER 30, 2023

As 2023 comes to an end, in line with our annual tradition, we take stock of the top IP developments that occurred this year. We have also included a list of other notable IP developments of 2023. The judgement was passed in October 2022, but was uploaded in September 2023 on the High Court’s website. A special thanks to Mr. G.

IP 124

IP Copyright Trademark Intellectual Property 124

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.

False Advertising 45

False Advertising Advertising Advertising Trademark 45

43(B)log

JANUARY 27, 2023

3d -, 2023 WL 371035, No. 24, 2023) WS sued Wayfair, alleging patent infringement, Lanham Act false advertising, Massachusetts and California statutory unfair competition and Massachusetts false advertising based on alleged copying of West Elm products. Wayfair Inc., 1:21-12063-PBS (D.

False Advertising 59

False Advertising Advertising Advertising Design 59

43(B)log

MAY 19, 2023

2023 WL 2433970, -- F. 9, 2023) Roblox runs a “digital world where users create virtual games and experiences and connect with other users.” Roblox Corp. 22-cv-04476-SI (N.D. Users interact with the platform through virtual characters known as “Avatars.”

Copying 94

Copying False Advertising Social Media Advertising 94

Erik K Pelton

DECEMBER 20, 2022

Besides Mariah, there were many other celebrity trademark stories this year, as more an more celebrities launch more and more brands. On November 7 th , Conde Nast sued Drake and 21 Savage for $4 million for false advertising and infringing Vogue’s trademarks. Looking ahead to 2023. © 2022 Erik M.

Trademark 130

Trademark Non-Fungible Tokens All Rights Reserved False Advertising 130

43(B)log

AUGUST 7, 2023

2023 WL 4952576, No. 3, 2023) Potentially interesting pretrial rulings in this false advertising/TM case: Goli’s motion to exclude the testimony of Dr. Jerry Wind was granted in part to preclude him from opining on the ultimate question of likely confusion or balancing the trademark infringement factors, which was for the jury.

False Advertising 70

False Advertising Advertising Advertising Law 70

Technology & Marketing Law Blog

JANUARY 19, 2023

A couple of specifics: The false advertising claims don’t escape 230: “Had those third-party users refrained from posting harmful content, Plaintiffs’ claims that Defendants falsely advertised and misrepresented their applications’ safety would not be cognizable.” Despite Doe v. Case citation : Bride v.

False Advertising 105

False Advertising Social Media Publishing Advertising 105

43(B)log

MARCH 31, 2023

2023 WL 2647958, 22 Civ. 27, 2023) Eshelby sued L’Oréal over its use of “Paris” (including as part of the brand name “L’Oréal Paris”) and French-language text in ads and on the front of packages when the products aren’t made in France. L’Oréal USA, Inc., 1396 (AT) (S.D.N.Y.

Branding 104

Branding Brands Branding False Advertising 104

43(B)log

JANUARY 27, 2023

2023 WL 416080, No. False advertising: Spiralverse allegedly falsely advertised its version of the Piano Book on Amazon as “new,” despite the rebinding, residue, and front labels. Was this literally false? Steeplechase Arts & Productions, L.L.C. Wisdom Paths, Inc., 22-02031 (KM)(MAH) (D.N.J.

Derivative Work 75

Derivative Work False Advertising Advertising Advertising 75

43(B)log

JULY 15, 2024

10, 2023) Nike sued over StockX’s use of Nike trademarks on StockX NFTs without Nike’s consent and alleged sales of counterfeit Nike sneakers despite allegedly guaranteeing that all products sold by StockX were authentic. Nike claims that, despite those efforts, StockX sold a number of Nike-branded shoes that were counterfeits.

False Advertising 69

False Advertising Branding Brands Branding 69

43(B)log

JUNE 19, 2023

Red Points Solutions SL, 2023 WL 4029824, No. 14, 2023) Unlimited, an “online non-authorized reseller of consumer products,” sued Red Points for defamation, tortious interference, and false advertising under state and federal law. Lanham Act false advertising: Unlimited sufficiently pled standing.

False Advertising 53

False Advertising Advertising Advertising Reporting 53

43(B)log

MARCH 27, 2023

EDCV 22-1861 JGB (KKx), 2023 WL 2629020 (C.D. 9, 2023) Hernandez brought the usual California claims against RSC for allegedly false and misleading advertising of its electric collar products for pets under the brand name PetSafe. Hernandez v. Radio Systems Corp.,

False Advertising 59

False Advertising Advertising Advertising Branding 59

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. For background on the legal battles over keyword advertising by lawyers, see this article. McNeil Consultants LLC, 2023 WL 5600128 (N.D. July 27, 2023). Case citation : Jim S.

Advertising 98

Advertising Advertising False Advertising Trademark 98

SpicyIP

APRIL 17, 2023

Case: Coolulu Sports Private Limited vs Union Of India on 5 April, 2023 (Karnataka High Court) Image from here The writ petition was filed against the order of the Regional Director, Corporate Affairs directing the petitioner to change its name for being similar to the trademark of the respondent no. 2 (Lulu Mall).

Advertising 105

Advertising Advertising Confidentiality Trademark 105

43(B)log

DECEMBER 20, 2023

3d -, 2023 WL 6066136, 22-cv-1597 (NSR) (S.D.N.Y. 18, 2023) CDC sued STM, alleging violations of New York state and federal law arising from STM’s involvement in the removal of ten of its product listings from Amazon.com. CDC Newburgh Inc. STM Bags, LLC, F.Supp.3d As usual, a compelling and intuitive theory of harm.)

False Advertising 64

False Advertising Advertising Advertising Reporting 64

43(B)log

JULY 3, 2023

16-6576 (KM) (MAH), 2023 WL 4200169, -- F. 27, 2023) Industria sued Latinfood for trademark and copyright infringement; Latinfood counterclaimed for tortious interference against Industria and another counterdefendant Cordialsa. Industria De Alimentos Zenu S.A.S. Latinfood U.S. This makes Colombians abroad get tricked.”

False Advertising 59

False Advertising Advertising Advertising Registration 59

43(B)log

APRIL 25, 2023

Purlife Brands, Inc., 2023 WL 3046592, No. 21, 2023) In two opinions on the same day, the court dealt with various IP/false advertising claims brought by one litter box seller against another. Purlife Brands, Inc., 2023 WL 3049106, No. Automated Pet Care Prods., 22-cv-04261-VC (N.D.

False Advertising 45

False Advertising Advertising Advertising Social Media 45

43(B)log

OCTOBER 11, 2023

CV 17-7539 FMO (GJSx), 2023 WL 6296900 (C.D. 27, 2023) Interesting bench trial result that finds no proximate causation of plaintiff’s injury from defendant’s false advertising. Tortilla Factory, LLC v. GT’s Living Foods, LLC, No. Tortilla Factory simply couldn’t show the requisite harm.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

JANUARY 13, 2023

Ancient Brands, LLC, 2023 WL 157956, No. 11, 2023) The parties compete in the market for collagen peptides supplements. Vital Proteins LLC v. 22 C 02265 (N.D.

Advertising 102

Advertising Advertising Marketing Marketing 102

43(B)log

MARCH 13, 2023

2023 WL 2364736, No. 24, 2023) Hey, it’s a certified class in a vanilla case: Vizcarra alleged that Breyers Natural Vanilla Ice Cream misleadingly communicated that it contained vanilla flavor derived exclusively from the vanilla plant. Vizcarra v. Unilever U.S., 4:20-cv-02777 YGR (N.D. were not sure.

False Advertising 56

False Advertising Branding Branding Brands 56

Technology & Marketing Law Blog

JANUARY 8, 2024

I raised this taxonomical issue with the Network Automation case , which involved niche-y job scheduler software where a consumer who is new to the niche might not know the various brands when starting a search. 2023 WL 9051998 (E.D. 28, 2023) More Posts About Keyword Advertising * When Do Inbound Call Logs Show Consumer Confusion?–Adler

Trademark 98

Trademark Advertising Advertising False Advertising 98

43(B)log

JULY 25, 2024

In fall 2023, Overjet launched its “Anatomical Structures Visualization Tool” for Overjet Caries Assist, which introduced the relevant coloring scheme and design. It also allegedly “selected the design and colors to help with brand identification; the purple, for example, complements Overjet’s purple brand color.” Overjet, Inc.

Copyright 59

Copyright False Advertising Advertising Advertising 59

43(B)log

JANUARY 11, 2023

2023 WL 137478, No. 9, 2023) Simpson sued MiTek for Lanham Act and state law false advertising/passing off, and for copyright infringement. For false advertising, the control group respondents were exposed to the same four MiTek stimuli but with the reference numbers removed. Simpson Strong-Tie Co.

False Advertising 45

False Advertising Advertising Advertising Reporting 45

43(B)log

FEBRUARY 16, 2023

22-cv-01240 (ERK) (RML), 2023 WL 1766167 (E.D.N.Y. Whole Foods Market Group, Inc., front of bottle: "Omega-3s EPA & DHA/1000mg Per Serving/From Small Cold-Water Fish/Molecularly Distilled" The court found he failed to state a claim.

Branding 72

Branding Brands Branding Marketing 72

43(B)log

JANUARY 2, 2024

3d -, 2023 WL 6318523, No. 28, 2023) Another day, another “One A Day” claim where the bottle instructs users that, you guessed it, a daily serving is more than one gummy. It was also relevant, though not dispositive, that other supplements sold under the same brand were, in fact, one per day. Bayer Corp.,

Branding 59

Branding Brands Branding Marketing 59

43(B)log

JUNE 6, 2023

2, 2023) Courts generally seem more likely to find falsifiability instead of puffery when a speaker makes negative claims about rivals rather than positive claims about itself. USA, LLC v. Malwarebytes, Inc., 21-16466 (9th Cir. USA, LLC v. Malwarebytes, Inc., 21-16466 (9th Cir. In other words, we use our judgment….

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

JUNE 21, 2023

2023 WL 3829689, No. 5, 2023) Hicks alleged that defendant, a California agricultural corporation, misrepresented the environmental impact of its farming practices through its advertising and “Inaugural Report on Environmental, Social and Governance Actions.” Grimmway Enters., 22-CV-2038 JLS (DDL) (S.D.

Law 72

Law Social Media Reporting Business 72

43(B)log

APRIL 25, 2023

2023 WL 3055196, No. 21, 2023) Defendant makes Topo Chico “Margarita Hard Seltzer.” The front label contains the brand name “Topo Chico,” the word “Margarita,” and the phrase “Hard Seltzer.” Coca-Cola Co., 22-CV-6907 (CS) (S.D.N.Y. It doesn’t have any tequila in it, though it is made with agave sugars.

Branding 59

Branding Branding Brands False Advertising 59

43(B)log

MAY 22, 2023

2023 WL 3556053, No. May 19, 2023) Whereas the timeshare false advertising cases might be making law largely applicable to other timeshare cases, what’s going on in the strip club advertising cases might have somewhat broader implications. Exotic Island Enters., 21-2149-cv, F.4th 4th - (2d Cir. 59 Murray Enters.,

Social Media 49

Social Media False Advertising Advertising Advertising 49

43(B)log

MAY 3, 2023

Young Living Essential Oils, LC, 2023 WL 3185045, No. May 2, 2023) In 2020, NAD found that Young Living’s claims that its essential oils are “therapeutic-grade” and impart physical and/or mental health benefits were “unsupported.” MacNaughton v. 22-0344, -- F.4th 4th -- (2d Cir.

Law 40

Law False Advertising Advertising Advertising 40

43(B)log

FEBRUARY 22, 2024

Old label showing "San Marzano" on top of elongated, pointed tomatoes But now it sells a variety of Roma tomato products under the “San Merican Tomato” or “SMT” brand. The complaint alleges that the text is “so comically miniscule that it is almost impossible to see with the naked eye.” Benefit Corp., 3d 1111, 1129 (N.D.

Design 69

Design Designs Branding Branding 69

43(B)log

JUNE 27, 2023

2023 WL 4162348, No. May 18, 2023) Granting reconsideration, the court reverses its previous ruling and dismisses the claims with prejudice. Would you believe I substantially shortened the analysis? La Barbera v. Olé Mexican Foods Inc., EDCV 20-2324 JGB (SPx) (C.D. La Banderita Whole Wheat Fajita Similar.

Marketing 100

Marketing Marketing Advertising Advertising 100

43(B)log

JUNE 20, 2023

4th -, 2023 WL 3911531, No. 9, 2023) The court affirmed the dismissal of consumer protection claims against P&G products that used “Nature Fusion” in bold, capitalized text, with an image of an avocado on a green leaf. McGinity v. Procter & Gamble Company, F.4th 22-15080 (9th Cir.

False Advertising 45

False Advertising Marketing Marketing Advertising 45

43(B)log

MARCH 20, 2023

Amazon.com, 2023 WL 2538706, No. 16, 2023) Plaintiffs alleged they bought and used Solimo, a melatonin supplement manufactured and sold by Amazon. Plaintiffs alleged that Solimo falsely substantially understates Solimo’s true melatonin dosage in each serving, exceeding what would be a “reasonable excess” allowed by the FDA.

Law 64

Law Advertising Advertising Contracts 64

43(B)log

MARCH 13, 2023

Pervine Foods, LLC, 2023 WL 2354976, No. 3, 2023) Plaintiffs sought to represent a class of purchasers of FITCRUNCH Whey Protein Baked Bar products or FITBAR energy bar products. 9561 (NRB) (S.D.N.Y.

Branding 59

Branding Branding Brands Law 59

43(B)log

MAY 22, 2023

May 17, 2023) The court rejected Sazerac’s motion to dismiss McKay’s usual California statutory and common law claims on behalf of a putative class based on Sazerac’s labeling and marketing of mini bottles of Fireball malt beverages, which look almost the same as Fireball Whisky. Sazerac Co., 23-cv-00522-EMC (N.D.

Licensing 59

Licensing Law Branding Branding 59