43(B)log

DECEMBER 28, 2022

17, 2022) Along with the headline-worthy nature of the claim (“ITALY’S #1 BRAND OF PASTA” plausibly falsely communicates Italian origin), the decision contains an extended discussion of judicial notice on a motion to dismiss v. come from Italian ingredients, [are] processed and manufactured in Italian factories, and then exported.”

Branding 57

Branding Brands Branding False Advertising 57

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. First, only 94 of those references were “actual leads processed by Quintessa from its competitive bidding campaign (the campaign that bids on the Adler Marks).” Adler PC v.

Advertising 84

Advertising Advertising False Advertising Trademark 84

43(B)log

MARCH 18, 2022

Fresh Bourbon allegedly falsely advertises that Fresh Bourbon is the “first black-owned bourbon distillery in Kentucky,” and makes other related false claims, which is allegedly false because it’s not a distillery, which requires both federal (TTB) and Kentucky (KABC) licenses.

False Advertising 67

False Advertising Advertising Advertising Marketing 67

43(B)log

APRIL 25, 2023

Purlife Brands, Inc., 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. Motion to dismiss denied as to trademark infringement, false designation of origin, and unfair competition claims based on the use of Smarty Pear’s hashtags.

False Advertising 57

False Advertising Advertising Advertising Social Media 57

IP and Legal Filings

SEPTEMBER 14, 2023

This has led to consumers opting for brands that pledge their duty to contributing towards environmental protection by means of minimalism and sustainability. In today’s era of eco-branding, wherein trademarks are used to distinguish sustainable brands from the mainstream commercial ones, the latter engage in the practise of “greenwashing”.

Branding 83

Branding Brands Branding Trademark 83

LexBlog IP

AUGUST 7, 2023

CCDH urges brands to not advertise on sites that promote disinformation. X Corp suggests that these efforts have resulted in reduced advertising levels on Twitter. The reference in the Quinn letter to 43(a) was interesting. Based on the complaint, a 43(a)(1)(B) false advertising cause is a bit of an uphill battle.

Social Media 52

Social Media Reporting Contracts False Advertising 52

43(B)log

JUNE 10, 2024

The challenged language includes “to help manage blood sugar,” “#1 doctor recommended brand,” and “scientifically designed for people with diabetes.” This is not the sort of ambiguity that can be definitively resolved by reference to a back label.”

Designs 57

Designs Design Branding Brands 57

SpicyIP

OCTOBER 27, 2023

Nagging refers to persistent, repetitive, and constant requests for action, such as the ‘sign-up’ or ‘subscribe now’ box repeatedly opening on an unrelated webpage during various access steps. Example: ‘No thanks, I hate saving money’ 5. This violates copyright laws and may lead to legal actions for copyright infringement.

Intellectual Property 52

Intellectual Property False Advertising Designs Design 52

43(B)log

AUGUST 25, 2022

22, 2022) The court here allows an antitrust claim to proceed based in part on allegedly false/misleading statements because they form part of the alleged anticompetitive product-hopping scheme and because the unique characteristics of the drug market make market-based responses to false advertising difficult.

False Advertising 57

False Advertising Advertising Advertising Marketing 57

The IPKat

AUGUST 25, 2023

Only a few days ago, news was shared online that energy drink brand Alani Nutrition sued Rise UP and an influencer for copyright infringement and false advertising due to the allegedly unauthorised reproduction of one of its advertising campaigns. Its right pocket has a small star-shaped embroidery with the brand's logo.

Copyright Infringement 52

Copyright Infringement False Advertising Branding Brands 52

43(B)log

AUGUST 1, 2022

ICC develops model building codes and standards; it sued a competitor, UpCodes, for false advertising (Lanham Act, NY GBL, and common law unfair competition). When a local government adopts an ICC code, “it often does not publish the entirety of the code; rather, it codifies the code by reference and then publishes its own amendments.”

False Advertising 57

False Advertising Law Advertising Advertising 57

IP and Legal Filings

MAY 13, 2023

Using the name or image of a celebrity for brand advertisement or promotion in the US does not always attract liability, provided the brand is not falsely misleading the public that the celebrity endorses the product. Spelling-Goldberg Prods., In Gautam Gambhir v. D.A.P & Co. &

Personality Rights 87

Personality Rights Privacy Trademark Law False Advertising 87

43(B)log

JULY 15, 2022

Likewise, while a 10% drop in donations was quantifiable in money, it could also serve as evidence of irreparable harm—that “the Spence Group’s confusing statements and advertisements have undermined the distinctiveness of the College’s trademarks.” I note that strong evidence suggests that the answer is “yes.”] Was this commercial speech?

Trademark 57

Trademark False Advertising Advertising Advertising 57

43(B)log

AUGUST 30, 2021

22, 2021) Rodriguez alleged that Olé’s La Banderita tortillas falsely advertised Mexican origin based on a Mexican flag front and center on the packaging, the phrase “El Sabor de Mexico!” the brand name “La Banderita” (“the flag”), and the Spanish phrase “Tortillas de Maiz” on the label of the Corn tortillas.

False Advertising 57

False Advertising Advertising Advertising Branding 57

43(B)log

JUNE 14, 2022

May 25, 2022) Alcon sued Lens.com for federal and state false advertising and trademark claims. The Lanham Act false advertising counterclaim was dismissed. Alcon Vision, LLC v. Lens.com, Inc., 2022 WL 1665453, No. 1:18-cv-00407-NG-RLM (E.D.N.Y.

False Advertising 70

False Advertising Trademark Advertising Advertising 70

43(B)log

AUGUST 17, 2021

Plaintiffs sued for false advertising and false endorsement under the Lanham Act, violation of their right to publicity, deceptive trade practices under New York GBL Section 349, and defamation. 2021), which considered all these claims except for false advertising. The court was guided by Electra v. 3d 233 (2d Cir.

Social Media 57

Social Media False Advertising Advertising Advertising 57

Technology & Marketing Law Blog

JULY 22, 2021

In characterizing Section 230, every reference to “immunize” is changed to “‘protect.” The prior opinion contained two references to Section 230 as “broad.” Courts have rejected Section 230 defenses against claims for false advertising, deceptive trade practices, and tortious interference.

False Advertising 141

False Advertising Contracts Editing Advertising 141

SpicyIP

MARCH 10, 2024

The Plaintiff presented evidence of its long-standing use and registration of the ‘NOVA’ trademark, along with the distinct packaging featuring a blue background, a grazing cow, and the brand name. During the proceedings, the Court observed and penalised the Defendants for false advertising and contemptuous conduct.

Trademark 59

Trademark Registering Trademarks Registration False Advertising 59

43(B)log

MARCH 31, 2023

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., 2023 WL 2647958, 22 Civ. 1396 (AT) (S.D.N.Y.

Branding 103

Branding Brands Branding False Advertising 103

43(B)log

APRIL 25, 2023

The front label contains the brand name “Topo Chico,” the word “Margarita,” and the phrase “Hard Seltzer.” The use of “Hard Seltzer” allegedly reinforced that expectation, as “the term ‘hard’ in the context of alcohol refers to distilled spirits, i.e., ‘hard liquor’ ” like tequila. Coca-Cola Co., 2023 WL 3055196, No. alcohol by volume.

Branding 57

Branding Brands Branding False Advertising 57

43(B)log

APRIL 26, 2022

Painaway advertised its products as “Australia’s No. 1 Joint & Muscle Spray and Cream Topical Pain Relief Brand” on: (1) its Australian website; (2) social media; and (3) Ultimate Fighting Championship (“UFC”) athletes’ clothing in matches televised in the United States. The court granted summary judgment to MaxRelief.

Television 70

Television Social Media Advertising Advertising 70

43(B)log

JULY 15, 2022

Continued manufacture and sale of the Max Racks after the agreement expired was a traditional ex-franchisee situation; the other accused uses basically were failing to purge every reference to the Max Rack from the Core website and user manual even after the transition to the Freedom Rack. When they did try, they missed some references.

Advertising 57

Advertising Advertising Licensing False Advertising 57

LexBlog IP

SEPTEMBER 14, 2022

.” That same environmental information—encompassing the “E” in trending ESG—is of value to consumers who seek out and, at times, pay a premium for “green” branded products. In February 2022, the National Advertising Division (NAD), oversaw two cases concerning environmental claims.

Marketing 52

Marketing Marketing Advertising Advertising 52

43(B)log

JUNE 20, 2023

I teach that false advertising is probabilistic: if a representation is likely to deceive a substantial number of reasonable consumers, it is deceptive, even if not everyone is misled—but that conclusion is most reliable for competitor-plaintiffs, as this case shows.

False Advertising 57

False Advertising Marketing Marketing Advertising 57

43(B)log

AUGUST 3, 2023

So too w/false advertising. Advertising: false endorsement potential. Assumptions skipped over in TM/false advertising analysis.] Protecting brand investment and consumers? Evolving norms of communication and branding both have no punctuation/capitalization: lululemon. Death closes things off.

Registration 52

Registration False Advertising Advertising Advertising 52

43(B)log

FEBRUARY 16, 2024

Static Controls in 2012, a Lanham Act false advertising case, the Court gave us two more principles for interpreting section 43: a statutory cause of action extends only to plaintiffs whose interests “fall within the zone of interests protected by the law invoked.” If you just saw it, would you think that’s their brand?

Trademark 57

Trademark Fair Use Registration False Advertising 57

43(B)log

OCTOBER 6, 2021

American Girl Brands, LLC, 2021 WL 510729, No. I will note here, as I often do, that in a false advertising case these allegations would likely be treated as conclusory at best. Not to mention that “dilution” is not the same thing as false endorsement! Walkowicz v. 20-cv-374-jdp (W.D.

Law 57

Law Privacy False Advertising Social Media 57

43(B)log

AUGUST 17, 2021

Defendants argued that federal regulations allowed it to use “a cocktail name as a brand name or fanciful name.” They don’t ban “[t]he use of a cocktail name as a brand name or fanciful name of a malt beverage, provided that the overall label does not present a misleading impression about the identity of the product.”

Marketing 78

Marketing Marketing Branding Brands 78

43(B)log

APRIL 15, 2024

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. Indeed, the evidence shows that, in ordinary parlance, the term “good meat” is used routinely to refer to the concept of sustainably sourced meat.

False Advertising 62

False Advertising Advertising Advertising Marketing 62

43(B)log

SEPTEMBER 10, 2021

Defendant misleadingly labels and advertises its products as having “no preservatives” as well as being “free of artificial additives,” “non-GMO,” “healthy,” and “protein-packed.” 29, 2021) Plaintiffs alleged that Kodiak was liable for “(1) non-functional slack fill and (2) deceptive marketing practices” for its pancake and waffle mixes.

Marketing 44

Marketing Marketing Advertising Advertising 44

43(B)log

JANUARY 11, 2023

9, 2023) Simpson sued MiTek for Lanham Act and state law false advertising/passing off, and for copyright infringement. MiTek allegedly uses product names that are identical or similar to Simpson product names and also uses Simpson’s product names as “reference numbers” for MiTek’s own products. Simpson Strong-Tie Co.

False Advertising 57

False Advertising Advertising Advertising Reporting 57

43(B)log

AUGUST 7, 2023

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. GOLO, LLC v. 20-667-RGA (D.

False Advertising 91

False Advertising Advertising Advertising Law 91

43(B)log

AUGUST 23, 2021

22, 2021) Monster “sells espresso energy drinks blended with European milk and purporting to be flavored with vanilla under their Monster brand.” By contrast, courts in the Second Circuit “have sustained claims where the language of a product label, in context, referred not only to a flavor but also indicated the presence of an ingredient.”

Branding 57

Branding Brands Branding Marketing 57

43(B)log

DECEMBER 1, 2022

Viacom also engaged a market research company to learn more about “southern beach culture,” which suggested that the term Flora-bama was “either unknown or though [sic] to refer strictly to the bar.” But: “Famous trademark holders use their marks to brand and market all sorts of goods—some of which are artistic in nature….

Artistic Work 62

Artistic Work Television Trademark Trademark Law 62

43(B)log

OCTOBER 4, 2021

But genuine fact issues remained on whether J-B Weld’s advertising of “Made in USA” was false and whether Illinois Tool had standing. While Illinois Tool sat on its hands, not only did J-B Weld’s sales grow, but it expanded its brands into more stores and launched new variants (like “Perma-Lock Green”). The evidence conflicts.”

False Advertising 67

False Advertising Advertising Advertising Trademark 67

43(B)log

SEPTEMBER 30, 2021

However, the false advertising claims failed because they didn’t identify material differences in the products. But “the delivered units do not have handles and have a different overall look and feel from the advertised units.” There were no allegations that defendants’ marketing materials referred to Strong Current in any way.

False Advertising 54

False Advertising Advertising Advertising Marketing 54

SpicyIP

APRIL 17, 2023

Offering an alternative, she argues that instead of looking at the Amendment Bill, the judicial orders and judgements by the Indian courts should be the source of reference for the upcoming Diplomatic Conference on IP, Genetic Resources and TK.

Advertising 105

Advertising Advertising Confidentiality Trademark 105