43(B)log

APRIL 29, 2024

Kitchen Cube LLC, 2024 WL 1829620, No. 17, 2024) Leszczynski invented a measuring cube that combines various measuring volumes into a single cubical structure. Kitchen Cube cube Leszczynski sued for (1) copyright infringement; (2) violation of Creative Commons license terms; and (3) false advertising and misrepresentation.

False Advertising 59

False Advertising Advertising Advertising Copyright Infringement 59

43(B)log

JULY 8, 2024

3d -, 2024 WL 402925, No. 2, 2024) Noriega alleged that Abbott’s PediaSure falsely advertised that it was “[c]linically proven to help kids grow.” Abbott Laboratories, F.Supp.3d 4014 (PAE) (S.D.N.Y.

False Advertising 64

False Advertising Advertising Advertising Publishing 64

43(B)log

FEBRUARY 16, 2024

SmileDirectClub, LLC, 2024 WL 559235, No. 12, 2024) The court denied certification to a proposed class of dentists/orthodontists over SDC’s allegedly false advertising for its plastic aligners/teledentistry services, based on difficulties identifying harm/causation. 3:19-cv-00845 (M.D.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

FEBRUARY 16, 2024

2024 WL 629985, No. 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. Lashify, Inc. Qingdao Lashbeauty Cosmetic Co.,

False Advertising 59

False Advertising Advertising Advertising Patent 59

43(B)log

MARCH 21, 2024

The Roundtable is designed to be a forum for the discussion of current trademark, false advertising, and right of publicity scholarship, covering a range of methodologies, topics, and perspectives. The Roundtable will be held on Friday, October 18, 2024. Submissions must be of full drafts in Microsoft word format.

False Advertising 64

False Advertising Trademark Advertising Advertising 64

43(B)log

MAY 13, 2024

The Roundtable is designed to be a forum for the discussion of current trademark, false advertising, and right of publicity scholarship, covering a range of methodologies, topics, and perspectives. The Roundtable will be held on Friday, October 18, 2024. Submissions must be of full drafts in Microsoft word format.

False Advertising 75

False Advertising Trademark Advertising Advertising 75

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

JD Supra Law

SEPTEMBER 16, 2024

26, 2024) - On August 26, 2024, the Western District of Wisconsin issued a decision adjudicating a number of motions in a case involving a thicket of intellectual property claims and counterclaims. and its affiliated parties (“Woodland”), asserting design patent infringement, false advertising, trade secret.

Design Patent 65

Design Patent Patent Infringement False Advertising Designs 65

43(B)log

AUGUST 27, 2024

CV-19-00265-PHX-GMS, 2024 WL 3665360 (D. 6, 2024) The parties—here WNI and AST—sell enzyme supplements and sued each other under the Lanham Act, and both prevailed on their affirmative claims and got disgorgement. AST falsely advertised with literally false claims about enteric coating. World Nutrition Inc.

False Advertising 59

False Advertising Advertising Advertising 59

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

JD Supra Law

NOVEMBER 15, 2024

Crocs, Inc. Effervescent, Inc., 1:06-cv-00605 (Fed.

False Advertising 65

False Advertising Advertising Advertising IP 65

43(B)log

OCTOBER 15, 2024

3d -, 2024 WL 4393314, No. 3, 2024) Advance sued YourBio, which competes in the market for at-home medical device testing patients’ level of anti-Mullerian hormone, for false advertising, tortious interference, defamation/disparagement, unjust enrichment, and unfair trade practices under Massachusetts statutory law.

False Advertising 59

False Advertising Advertising Advertising Publishing 59

43(B)log

OCTOBER 16, 2024

C 20-07414 WHA, 2024 WL 4351861 (N.D. 30, 2024) I don’t usually blog default judgments, but this one was interesting. Plaintiff was required to plead false advertising with specificity, then prove it.” This is a false advertising case, not a counterfeiting case. KHN Solutions LLC v.

False Advertising 59

False Advertising Marketing Marketing Advertising 59

43(B)log

SEPTEMBER 20, 2024

Bayer Healthcare LLC, 2024 WL 4204921, No. 16, 2024) Plaintiffs alleged that Bayer falsely advertised One A Day Natural Fruit Bites Multivitamin products as “natural” even though they “contain non-natural, synthetic ingredients.” 22-cv-1085-MMA (JLB) (C.D. They brought claims under NY and California law.

False Advertising 52

False Advertising Advertising Advertising Branding 52

43(B)log

JULY 29, 2024

2024 WL 3526853, No. 23, 2024) Skillz sued its competitor in mobile gaming, Papaya, for violating federal and NY law against false advertising by falsely advertising that its games pit human players against each other when in fact Papaya uses bots masquerading as human players. Skillz Platform Inc.

False Advertising 59

False Advertising Advertising Advertising Law 59

43(B)log

AUGUST 26, 2024

2024 WL 3673718, No. 6, 2024) Restaurants brought a putative class action alleging that Grubhub used their names and logos confusingly, asserting claims under the Lanham Act. Lynn Scott, LLC v. Grubhub Inc., 20 C 6334 (N.D. Without discussing materiality, the court found this adequate.

False Advertising 59

False Advertising Advertising Advertising Trademark 59

43(B)log

OCTOBER 15, 2024

4th -, 2024 WL 4352496, No. 1, 2024) Bowen sued Energizer for false advertising, alleging that its Banana Boat sunscreen was adulterated with dangerous levels of benzene, a carcinogen that scientists have determined can cause cancer. Energizer Holdings, Inc., 23-55116 (9th Cir.

False Advertising 59

False Advertising Advertising Advertising 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

43(B)log

FEBRUARY 16, 2024

Wong, 2024 WL 553695, NO. 12, 2024) This default judgment actually analyzes the false advertising claims, which is why I note it. Amazon.com, Inc. C19-0990JLR (W.D. Obviously, the trademark-related claims succeeded.

Advertising 49

Advertising Advertising False Advertising Trademark 49

JD Supra Law

MARCH 25, 2024

Every month, Erise’s trademark attorneys review the latest developments at the U.S.

False Advertising 70

False Advertising Trademark Advertising Advertising 70

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. Hawai’I Jun.

False Advertising 59

False Advertising Advertising Advertising Designs 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 that the products do not provide the advertised protection for up to 12 months or 365 days; that was sufficient to allege falsity. Scotts Company LLC v.

False Advertising 52

False Advertising Copyright Advertising Advertising 52

43(B)log

OCTOBER 16, 2024

3, 2024) Crocs sued competitors for patent infringement; defendant Dawgs counterclaimed for false advertising about the characteristics of the primary material Crocs uses to make its footwear products, a material it promoted as the “patented,” “proprietary,” and “exclusive” “Croslite.” Crocs, Inc. Effervescent, Inc.,

False Advertising 59

False Advertising Patent Advertising Advertising 59

43(B)log

MARCH 7, 2024

3d -, 2024 WL 940089 (N.D. 5, 2024) Sometimes, courts are very generous to competitors in presuming Lanham Act standing—as with the recent Meta ruling —and sometimes they aren’t. Shkipin’s amended false advertising counterclaim fails again. Shkipin, F.Supp.3d Previous ruling.

Advertising 59

Advertising Advertising False Advertising Business 59

43(B)log

FEBRUARY 23, 2024

Ferens, 2024 WL 710632, No. 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. Schabacker v. 22-3778 (E.D.

Advertising 59

Advertising Advertising False Advertising Law 59

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

JULY 25, 2024

Venkateswaran, 2024 WL 3487735, No. Portkey sued for unfair competition/reverse passing off, false advertising, and trademark infringement under the Lanham Act, as well as related state-law claims. Portkey Tech. 23-CV-5074 (JPO) (S.D.N.Y. This is a joke, but that doesn’t mean it won’t happen.)

Trademark Law 59

Trademark Law Trademark False Advertising Law 59

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

OCTOBER 29, 2024

2024 WL 4581512, No. 28, 2024) A rare timeshare exit company lawsuit against a timeshare developer, alleging false advertising and related claims. Lanham Act false advertising: WFG argued that Westgate’s exit program was not in fact available to most owners. Wesley Financial Gp. Westgate Resorts, Ltd.,

False Advertising 52

False Advertising Contracts Advertising Advertising 52

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. The court denies a preliminary injunction on the trademark claims based on lack of likely success on the merits, but declines to dismiss either infringement or false advertising claims. GOOD Meat, Inc.,

False Advertising 64

False Advertising Advertising Advertising Marketing 64

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

43(B)log

JANUARY 17, 2024

4th -, 2024 WL 164976, Nos. 16, 2024) Over a dissent in relevant part, the court revived plaintiff Ultra Bond’s Lanham Act claim relating to vehicle glass repair and replacement (VGRR). Campfield v. Safelite Gp., 22-3204/3225 (6th Cir. Safelite counterclaimed that Ultra Bond stole trade secrets.

False Advertising 64

False Advertising Marketing Marketing Advertising 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

JULY 25, 2024

3d -, 2024 WL 1741079, No. 23, 2024) Plaintiffs alleged that the presence of per- and polyfluoralkyl substances (“PFAS”) in Kerrygold butter made the use of “pure Irish butter” into false advertising under NY law. Ornua Foods North America Inc., 2:23-cv-01198-FB-RML (E.D.N.Y. The court declined to dismiss the complaint.

False Advertising 52

False Advertising Advertising Advertising Law 52

43(B)log

JANUARY 18, 2024

Eddie Bauer LLC, 2024 WL 177755, No. 17, 2024) This unpublished opinion has a dissent from Judge Bea indicating further disruptions in standing may be coming. But, once we’ve defined a good enough injury (harm from false advertising), the question of standing for injunctive relief seems to me to be a different type of question.

False Advertising 59

False Advertising Advertising Advertising Law 59

43(B)log

AUGUST 28, 2024

3:23-5552-CMC, 2024 WL 3656489 (D.S.C. 15, 2024) Pacira, which sells non-opioid pain management products, including Exparel, sued Nephron for false advertising. Pacira Biosciences, Inc. Nephron Sterile Compounding Center, LLC, No. Pacira sufficiently alleged injury. Were the Lanham Act claims precluded by the FDCA?

False Advertising 59

False Advertising Advertising Advertising Marketing 59