43(B)log

JULY 24, 2023

2023 WL 4681569 , No. Injury: Damages and disgorgement under the Lanham Act require injury (for false advertising, not trademark infringement, despite the same statutory language covering both; no, I am not going to stop pointing this out any time soon). Sandoz Inc. 2:22-cv-05326-RGK-MARx (C.D.

False Advertising 92

False Advertising Advertising Advertising Marketing 92

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. Since the designs were not plainly dissimilar, infringement was plausible. Since the designs were not plainly dissimilar, infringement was plausible.

Advertising 72

Advertising Advertising Branding Brands 72

43(B)log

DECEMBER 18, 2023

2023 WL 8697700, No. The engineer of record must indicate on construction drawings the specific structural connectors that will be used on a given project, whether a custom connector designed by the engineer to join and transfer the load between members or a pre-engineered connector. Simpson Strong-Tie Co. 20-cv-06957-VKD (N.D.

False Advertising 64

False Advertising Advertising Advertising Copyright 64

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 Designs 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. Its head of product development testified that the thin cross section had, as designed, worked acceptably for over 25 years. Shepard & Assoc., Lokring Tech.,

False Advertising 45

False Advertising Advertising Advertising Designs 45

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

Technology & Marketing Law Blog

JANUARY 19, 2023

Despite the rhetorical moves to position the lawsuit about the defendants’ design choices, this is actually an easy case. Meanwhile, the battle is raging in the MDL, the recent lawsuits brought by school districts over teens’ social media addiction, other lawsuits, and the panoply of state bills that will be introduced in 2023.

False Advertising 105

False Advertising Social Media Publishing Advertising 105

43(B)log

DECEMBER 15, 2023

2023 WL 8634803, No. 13, 2023) Vericool alleged that Igloo falsely claimed that its “Recool” biodegradable cooler was the first of its kind. were not designed to protect originality or creativity.” “Yet Vericool World LLC v. Igloo Prods. 22-cv-02440-HSG (N.D.

False Advertising 45

False Advertising Advertising Advertising Intellectual Property 45

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

43(B)log

MARCH 27, 2023

4th -, 2023 WL 2621131, No. 24, 2023) Courts in particular kinds of false advertising cases say that scientific claims are not falsifiable, even as the majority of workaday false advertising claims involving scientific fact are (correctly) treated as falsifiable. Pacira Biosciences, Inc. 22-1411 (3d Cir.

Journalism 111

Journalism False Advertising Advertising Advertising 111

43(B)log

SEPTEMBER 6, 2023

Allen Interchange LLC, 2023 WL 5206884, No. 14, 2023) This opinion deals only with Allen’s counterclaims. The Toyota parts sold by Allen Interchange and Toyota bear the same part number, and according to Allen Interchange, are identical in design, function, and quality. Allen Interchange LLC, 2023 WL 5207389, No.

Marketing 59

Marketing Marketing False Advertising Advertising 59

43(B)log

OCTOBER 11, 2023

2023 WL 6318083, No. 28, 2023) Sazerac sells a malt version of its famous Southern Comfort whiskey. Plaintiff alleged that Sazerac designed this malt version to look just like the original one, misleading consumers in violation of New York laws on deceptive practices and false advertising. Del Rosario v.

False Advertising 59

False Advertising Advertising Advertising Design 59

43(B)log

NOVEMBER 27, 2023

Design Gaps, Inc. Hall, 2023 WL 8103156, No. 21, 2023) Design Gaps produces custom cabinetry for high-end homes; Hall is a former employee of Design Gaps who signed a nonsolicitation/noncompete clause but went to work for a design studio that was part of Design Gaps’ main competition, Peters.

Copying 45

Copying False Advertising Designs Design 45

43(B)log

NOVEMBER 13, 2023

2023 WL 7390842, No. 8, 2023) Imprimis sued defendants, competitors in the compounding pharmacy industry, for false advertising, trademark and copyright infringement, and related claims. It alleged that defendants falsely advertised that they’re in compliance with Section 503A of the FDCA, governing compounding.

False Advertising 71

False Advertising Advertising Advertising Government 71

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

AUGUST 8, 2023

2023 WL 5000434, No. 4, 2023) Akes brought the usual California claims /unjust enrichment, alleging that she was misled by the labeling of the 2.5-ounce ounce bottle of Coppertone Sport Mineral sunscreen as “Face 50” to believe that it was “specifically designed” or “specifically formulated” “for use on the face.”

Designs 90

Designs Design Marketing Marketing 90

SpicyIP

APRIL 17, 2023

To Be or Not To Be (Design): Calcutta HC Sways Against Trend of Denying Design Registrations Over GUIs Image from here Can a GUI be regarded as a Design? In what follows, Rahul Bajaj sets out the key arguments of the parties and the holding of the court, along with his analysis of the judgment. 2 (Lulu Mall).

Advertising 105

Advertising Advertising Confidentiality Trademark 105

43(B)log

OCTOBER 11, 2023

22-cv-03119-PCP, 2023 WL 6284738, F.Supp.3d 27, 2023) HomeLight runs an online platform that matches real estate agents with homebuyers and sellers and requires any agent who accepts a referral resulting in a sale to pay 25% of their commission to HomeLight. I will only discuss the (unsuccessful) advertising-related claims.

False Advertising 45

False Advertising Advertising Advertising Law 45

43(B)log

FEBRUARY 17, 2023

Salinas, 2023 WL 2026546, No. 15, 2023) Defendants allegedly sold non-rescue dogs as rescue dogs. Lanham Act false advertising: Gonzalez lacked statutory standing. The trier of fact would have to resolve this; there was no dispute that the cage cards were in advertising format and about the puppies for sale. “To

False Advertising 59

False Advertising Advertising Advertising Trademark 59

43(B)log

MARCH 20, 2023

Crawlspace Ninja IP LLC, 2023 WL 2533061, No. 15, 2023) When is informational material related to a for-profit company’s business commercial speech? 5:22-cv-649-LCB (N.D. Here, the court finds a YouTube video noncommercial despite some reasonably solid connections to profit-seeking.

False Advertising 60

False Advertising Advertising Advertising Marketing 60

43(B)log

SEPTEMBER 5, 2023

3d -, 2023 WL 4463246, No. 11, 2023) The parties compete in the design of buckling-restrained braces, which are structural devices that help buildings withstand seismic activity. The Design Manual also included several technical drawings of BRBs, which allegedly infringed plaintiff Core-Brace’s registered drawings.

False Advertising 59

False Advertising Law Advertising Advertising 59

43(B)log

APRIL 25, 2023

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. 2023 WL 3049106, No. effective at eliminating viruses and bacteria was also plausibly false advertising. Automated Pet Care Prods.,

False Advertising 45

False Advertising Advertising Advertising Social Media 45

Technology & Marketing Law Blog

JUNE 5, 2023

” I agree 100%, and this line seems relevant to the court challenges to the age-appropriate design codes as applied to UGC publishers (and many other pending attempts to work around Section 230). ” That wasn’t the case here: “Google did nothing to make the content of the advertisement itself more unlawful.”

Advertising 59

Advertising Advertising False Advertising Publishing 59

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. T]he one showed in the application is not mine.”

False Advertising 59

False Advertising Advertising Advertising Registration 59

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. It is designed to get your pet’s attention, but not punish him. Hernandez v.

False Advertising 59

False Advertising Advertising Advertising Branding 59

43(B)log

JANUARY 3, 2024

2023 WL 9051998, No. 28, 2023) Penn Engineering designs and manufactures various types of fasteners sold under various trademarks, and alleged that Peninsula sold identical fasteners while infringing on Penn Engineering’s marks. Penn Engineering also made false advertising claims based on Peninsula’s use of sales drawings.

False Advertising 59

False Advertising Advertising Advertising Trademark 59

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

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.

False Advertising 56

False Advertising Branding Branding Brands 56

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, Inc. StockX LLC, 2024 WL 3361411, No. 22-CV-0983 (VEC) (S.D.N.Y.

False Advertising 69

False Advertising Branding Branding Brands 69

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. The district court dismissed the complaint on the grounds that these designations were “non-actionable statements of opinion.” Malwarebytes, Inc., collectively.”

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

MAY 3, 2023

2023 WL 3195941, No. May 2, 2023) Interesting discussion of the way in which the objective reasonable consumer standard allows consumers classes to bring certain probabilistic claims, where some consumers might have different interpretations, although the court ultimately denies certification because of damages/price premium issues.

Music 59

Music False Advertising Advertising Advertising 59

43(B)log

JANUARY 10, 2023

2023 WL 122910, No. 6, 2023) Norman sued Gerber for allegedly falsely advertising its baby food/infant formula products as “NON GMO Not Made With Genetically Engineered Ingredients” on the front of the package, and also on the back above the ingredients list. Gerber Prods. 21-cv-09940-JSW (N.D.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

FEBRUARY 6, 2023

3d -, 2023 WL 1438718, No. 1, 2023) The FTC, joined by California, Colorado, Florida, Illinois, Massachusetts, and New York, sued Roomster, an internet-based room and roommate finder platform, and related individuals. NY’s laws are territorial, prohibiting deceptive acts or false advertising conduct “in this state.”

False Advertising 56

False Advertising Confidentiality Advertising Advertising 56

43(B)log

NOVEMBER 27, 2023

3:23-CV-863-NJR, 2023 WL 8108547 (S.D. 17, 2023) “This case pits real lawyers against a robot lawyer.” MillerKing, a small Chicago law firm that claims to be a direct competitor of DNP, sued DNP for false association and false advertising under the Lanham Act and Illinois state law. MillerKing, LLC v.

False Advertising 49

False Advertising Advertising Advertising Contracts 49

43(B)log

FEBRUARY 22, 2024

San Marzano tomatoes “bear a special designation: D.O.P. Denominazione d’Origine Protetta, ‘Protected Designation of Origin’).” designation but are labeled “San Marzano style” or “San Marzano” without the D.O.P designation. San Marzano tomatoes grown in the United States do not have the D.O.P. Benefit Corp.,

Design 69

Design Designs Branding Branding 69

43(B)log

NOVEMBER 27, 2023

2023 WL 8006602, MDL No. 17, 2023) Because this is MDL with lots of claims, the facts are a bit complicated. It alleged that the Philips defendants, who make such devices, engaged in false advertising about one of SoClean’s devices in order to deflect blame for the Philips devices’ design defects. 22-542 (W.D.

Advertising 59

Advertising Advertising Marketing Marketing 59