JD Supra Law

OCTOBER 17, 2024

The US Court of Appeals for the Federal Circuit reversed and remanded a grant of summary judgment on a false advertising claim, concluding that a cause of action under Section 43(a) of the Lanham Act can arise when a party falsely claims to hold a patent on a product feature and advertises that feature in a misleading way.

False Advertising 68

False Advertising Advertising Advertising Patent 68

43(B)log

AUGUST 29, 2024

2024 WL 3925408, No. 23, 2024) Ortho-Tain sued defendants (including a bunch of former employees); I’ll focus only on the Lanham Act claims alleging that they falsely took credit for favorable results achieved by Ortho-Tain’s orthodontic appliance products used to treat various conditions such as sleep disordered breathing.

False Advertising 59

False Advertising Advertising Advertising Technology 59

43(B)log

FEBRUARY 26, 2024

Arm or Ally, LLC, 2024 WL 756474, No. 23, 2024) The AG sued sellers of “unfinished frames and receivers” — also known as “80% lowers” or “receiver blanks” —designed to evade restrictions on gun sales. State of N.Y. 22-CV-6124 (JMF) (S.D.N.Y.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

SEPTEMBER 20, 2024

2:23-cv-1541, 2024 WL 4217446 (S.D. 18, 2024) Scotts makes consumer lawn, garden, pesticide, and insecticide products, including under the “ORTHO” brand. Scotts alleged rights in its red mark, black trade dress, black label, and yellow barrier design that were allegedly infringed by competitor SBM’s competing products.

False Advertising 52

False Advertising Copyright Advertising Advertising 52

43(B)log

OCTOBER 18, 2024

3d -, 2024 WL 2834159, No. 4, 2024) Interesting contributory liability issue in its interaction with laches. The operative claims were false designation of origin/false advertising in violation of the Lanham Act and coordinate state-law claims. Hawaii Foodservice Alliance, LLC v. 21-00460 LEK-WRP (D.

False Advertising 59

False Advertising Advertising Advertising Design 59

43(B)log

OCTOBER 18, 2024

3021, 2024 WL 4444819 (W.D. 8, 2024) Previous discussion of MDL. 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. In re Soclean, Inc., Marketing, Sales Practices & Prods.

False Advertising 52

False Advertising Advertising Advertising Marketing 52

Patently-O

FEBRUARY 12, 2024

TaylorMade Golf Company teed off a dispute over golf club design and filed a patent infringement lawsuit on January 31 st, 2024, in the Southern District of California against Costco and Southern California Design Company alleging infringement and false advertising relating to five of TaylorMade’s patents related to golf irons.

False Advertising 102

False Advertising Invention Advertising Advertising 102

43(B)log

MARCH 6, 2024

2024 WL 898941, No. 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. NYU Langone Health Sys. Northwell Health, Inc.,

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

APRIL 29, 2024

2024 WL 1772833, No. 23, 2024) Skipping the copyright and trade secrets part of the case. (In False advertising: Meishe pointed to statements defendants made in their copyright notice at tiktok.com, in the ByteDance Code of Conduct, in TikTok’s Intellectual Property Policy, and in TikTok’s terms of service. Tiktok Inc.,

False Advertising 59

False Advertising Intellectual Property Copyright Notice Advertising 59

Technology & Marketing Law Blog

JUNE 23, 2024

After remand, the case went back to the Ninth Circuit, which held that anti-threat classifications might be Lanham Act false advertising. That putatively means that the court would characterize all threat identifications as “advertising.” Today I’m blogging the district court decision after that remand.

Law 59

Law False Advertising Advertising Advertising 59

43(B)log

APRIL 15, 2024

3d - , 2024 WL 1083462, No. 12, 2024) GMP is a nonprofit focused on sustainable butchery and meat production practices. GMP owns two federally registered trademarks: the “GOOD MEAT” standard character mark and the “GOOD MEAT BREAKDOWN” design mark. Good Meat Project v. GOOD Meat, Inc., 23-cv-04145-RFL (N.D.

False Advertising 64

False Advertising Advertising Advertising Marketing 64

43(B)log

MARCH 14, 2024

2024 WL 1051951No. 11, 2024) I have a long-running interest in Rule 68 offers of judgment, and this case involves an interaction with false advertising law! Double Diamond Distribution Ltd. Crocs, Inc., 23-cv-01790-PAB-KAS (D. The parties compete in the shoe market. Trade libel claims survived for the same reason.

False Advertising 59

False Advertising Advertising Advertising Branding 59

43(B)log

AUGUST 27, 2024

2024 WL 3687956, No. 7, 2024) PNC is “a large, diversified financial institution offering retail and wholesale banking services,” while Plaid connects cash payment and investment account applications like Venmo, Robinhood, and Coinbase with a user’s banks. PNC has a stake in another company, Akoya, designed to compete with Plaid. “[W]hile

Advertising 52

Advertising Advertising False Advertising Design 52

Technology & Marketing Law Blog

APRIL 27, 2024

This is a false advertising lawsuit again the mobile app game Game of Thrones: Conquest. The design elements use “a contrasting font color” making the notice legible on the dark background. April 26, 2024) The post Ninth Circuit Upholds “Sign-in-Wrap”–Keebaugh v. sought to send the case to arbitration.

False Advertising 94

False Advertising Government Privacy Design 94

43(B)log

MARCH 6, 2024

3d -, 2024 WL 911075, No. 1, 2024) “Qoins is a financial technology company that collects funds from its customers and disburses payments to designated creditors in order to help its customers pay off their debts.” But SouthState did have standing for a false advertising claim. SouthState Bank, N.A.

False Advertising 45

False Advertising Advertising Advertising Business 45

Technology & Marketing Law Blog

JUNE 4, 2024

It’s not hard to imagine how a negligent design claim could have been structured here. First, the plaintiff could have argued that YouTube’s design encourages the production and viewing of illegal animal abuse videos. Google LLC , 2024 WL 2809371 (Cal. Case citation : Freethinker v.

Contracts 89

Contracts Design Designs Publishing 89

43(B)log

JULY 25, 2024

2024 WL 3480212, No. 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.”

Copyright 59

Copyright False Advertising Advertising Advertising 59

LexBlog IP

JANUARY 31, 2024

This is because protection of trademarks, which are words, phrases, symbols, and designs that identify the source of goods or services, is separate from protection of copyrights and does not necessarily expire so long as the work is continuously and regularly used as a trademark.

Public Domain 52

Public Domain Trademark Copyright False Advertising 52

43(B)log

MAY 7, 2024

3d -, CV 22-7841 (GRB)(AYS), 2024 WL 1936053 (E.D.N.Y. May 2, 2024) Lots of ice cream jokes/quotes in here, but the basic question is: “should consumers ordering pistachio ice cream at one of [Cold Stone Creamery’s] establishments expect that that product will contain actual pistachios?” Kahala Franchising, L.L.C.,

False Advertising 59

False Advertising Advertising Advertising Branding 59

43(B)log

JUNE 11, 2024

2024 WL 2883671, No. 6, 2024) This is the latest decision in long-running litigation over Malwarebytes’ characterization of Enigma’s competing cybersecurity and anti-malware software as “malicious,” a “threat,” and as a Potentially Unwanted Program (“PUP”). Enigma Software Gp. Malwarebytes Inc., 17-cv-02915-EJD (N.D.

Advertising 64

Advertising Advertising Designs Design 64

43(B)log

JUNE 10, 2024

3d -, 2024 WL 2843092, No. 5, 2024) Abbott Laboratories’s Glucerna line of powders and shakes are marketed as scientifically designed for people with diabetes to help manage blood sugar. Prescott v. Abbott Laboratories, F.Supp.3d 23-cv-04348-PCP (N.D.

Design 59

Design Designs Branding Branding 59

43(B)log

MARCH 6, 2024

2024 WL 939151, No. 5, 2024) Plaintiffs sued defendant (Craftsman) for deceptive business practice claims under both the New York General Business Law (NYGBL), and the Virginia Consumer Protection Act (VCPA), as well as asserting warranty and common law claims. Montgomery v. Stanley Black & Decker, Inc., 23-735-cv (2d Cir.

Advertising 59

Advertising Advertising Business Design 59

43(B)log

JULY 15, 2024

StockX LLC, 2024 WL 3361411, No. As for the positivity of the ads, “consumer surveys in false advertising cases commonly display the challenged advertisement.” Nike, Inc. 22-CV-0983 (VEC) (S.D.N.Y. This opinion deals with various Daubert motions, allowing at least some of the testimony of eight challenged experts in.

False Advertising 69

False Advertising Branding Branding Brands 69

43(B)log

JUNE 3, 2024

2024) The court of appeals affirmed summary judgment in favor of KIND on Bustamante’s false advertising consumer protection class action claims based on KIND’s “All Natural” labeling. Bustamante v. KIND, LLC, 100 F.4th 4th 419 (2d Cir.

False Advertising 64

False Advertising Branding Branding Brands 64

43(B)log

FEBRUARY 22, 2024

20, 2024) According to the complaint, San Marzano tomatoes “originate[] from the town of San Marzano sul Sarno, near Naples, Italy.” San Marzano tomatoes “bear a special designation: D.O.P. Denominazione d’Origine Protetta, ‘Protected Designation of Origin’).” designation. designation.

Design 69

Design Designs Branding Branding 69

43(B)log

FEBRUARY 8, 2024

2024 WL 457798, No. 6, 2024) Della’s consumer protection claims turn on allegedly false labeling of toothpaste products as “recyclable” when, as alleged, recycling facilities that actually accept the used tubes are basically unavailable. Colgate-Palmolive Co., 23-cv-04086-JCS (N.D. But Colgate hasn’t received such an exemption.

Marketing 59

Marketing Marketing Government Design 59

43(B)log

MARCH 21, 2024

LLC, 2024 WL 1160687, No. 18, 2024) Interesting defense-side use of surveys in this consumer protection case. On deceptiveness, Pabst argued that Peacock didn’t designate any expert witnesses or other evidence to show how consumers interpreted the label, while Pabst offered an expert opining on a consumer survey.

Social Media 59

Social Media Marketing Marketing Design 59

43(B)log

AUGUST 27, 2024

2024 WL 3691607, No. 7, 2024) Daubert motions for this case. Plaid’s consumer confusion expert, Dhar, used a “consumer journey approach,” designed to mimic what users would be seeing when deciding whether to buy or use a given product or service. Another ruling in the PNC v. Plaid case: PNC Financial Services Gp.

Branding 52

Branding Branding Brands False Advertising 52

43(B)log

FEBRUARY 1, 2024

3d -, 2024 WL 322050, No. 29, 2024) The court certified a class of New York consumers who were assessed multiple fees for making balance inquiries at one of defendant FCTI’s ATMs at 7-Eleven stores. 22-cv-4315 (JSR) (S.D.N.Y.

Design 59

Design Designs False Advertising Advertising 59

43(B)log

APRIL 5, 2024

2024 WL 1356220, No. 29, 2024) The court partially grants class certification and rejects motions to exclude experts. Again, this “amounts to a disagreement on survey methodology, rather than suggestions that a survey could not be designed to test materiality in the first place.” PharmaCare U.S., 21cv137-JES (AHG) (S.D.

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Branding Branding Brands Advertising 59

SpicyIP

DECEMBER 30, 2023

The Court noted that the Patents Act is specifically designed to deal with matters concerning allegations of unreasonable conditions in licence agreements, abuse of one’s status as a patentee, the necessary inquiry into these allegations, and eventually the relief that can be granted. Controller of Patents & Designs Patent Office Mumbai.

IP 114

IP Copyright Trademark Intellectual Property 114

Technology & Marketing Law Blog

OCTOBER 23, 2024

” Furthermore, in a mild surprise, the court blesses Google’s “ad” label: “the bolded “Ad” designation next to each of ALG’s advertisements sufficiently distinguishes ALG’s advertisements from the search’s organic results.” Brown, Engstrand & Shely, LLC , 2024 WL 4537915 (9th Cir.

Trademark 96

Trademark Advertising Advertising False Advertising 96