43(B)log

AUGUST 5, 2022

4, 2022) Frequent IP claimant Lisa Frank is in court this time over a failed deal with a vegan cosmetics company, whose contract aspects I will ignore. Lanham Act false advertising: Were the statements “commercial advertising or promotion” even though not in a conventional ad? CV-21-00228-TUC-SHR, 2022 WL 3098042 (D.

Advertising 59

Advertising Advertising False Advertising Contracts 59

43(B)log

SEPTEMBER 30, 2021

The lawyer defendants allegedly interfered with the timeshare contracts by (1) participating in the marketing defendants’ false and misleading advertising; (2) encouraging or directing the nonpayment of fees owed to Diamond; and (3) keeping the owners in the dark regarding the adverse financial consequences resulting from the nonpayment of fees.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JANUARY 6, 2022

5, 2022) The court finds that, contrary to the district court’s holding, at least some of the underlying lawsuit’s allegations claimed that Vitamin Energy made disparaging statements about 5-hour Energy, thus triggering the insurer’s duty to defend under its “advertising injury” policy.

Advertising 72

Advertising Advertising False Advertising Intellectual Property 72

Technology & Marketing Law Blog

DECEMBER 9, 2022

Someone has referred you here because you’ve said something wrong about the laws related to web scraping in the United States. You’ve Been Referred Here Because You’re Wrong About The First Amendment.” Trademark, copyright, trespass to chattels, the law of online contracts—none of this stuff is novel. Don’t worry!

Blogging 119

Blogging Law Contracts Cease and Desist 119

43(B)log

FEBRUARY 7, 2022

28, 2022) Wound Care is a Medicare-enrolled supplier of surgical wound dressings to patients in nursing homes and other long-term care facilities nationwide under nonexclusive agreements; mostly facilities enter supply contracts with Wound Care on behalf of their patients under an assignment of benefits issued to the facilities by the patients.

Advertising 59

Advertising Advertising False Advertising Contracts 59

43(B)log

AUGUST 16, 2021

It does so at the Rose Bowl Stadium under three contracts with Pasadena, including a Master License Agreement, Trademark Agreement, and Trademark Consent Agreement. PTRA argued that, because Pasadena has referred to the Rose Bowl Game as “the game” in the past, the Rose Bowl Game was readily identifiable without using the term.

Fair Use 94

Fair Use False Advertising Intellectual Property Ownership 94

43(B)log

MARCH 6, 2024

Qoins also referred to SouthState in its responses to customer reviews, saying it was responsible for withholding funds. This was all allegedly false and misleading (given that Qoins customers were not SouthState customers, they weren’t FDIC insured). But SouthState did have standing for a false advertising claim.

False Advertising 45

False Advertising Advertising Advertising Business 45

43(B)log

JULY 8, 2024

28, 2024) The court declined to find Berrin’s consumer protection claims against Delta based on its “carbon neutral” advertising preempted by the Airline Deregulation Act (ADA, confusingly enough), though that wasn’t the end of the inquiry. Delta Air Lines, Inc., 2024 WL 3304815, No. 2:23-cv-04150-MEMF-MRW (D.C. Wolens, 513 U.S.

Advertising 64

Advertising Advertising Marketing Marketing 64

43(B)log

FEBRUARY 21, 2022

They plausibly alleged, with examples, lots of horsepower claims, and plausibly alleged that an ordinary person would understand these representations to mean that a treadmill’s in-home continuous horsepower matched the “CHP” value advertised. They needed to file an amended complaint specifying when they gave pre-suit notice, though.

Advertising 59

Advertising Advertising Contracts Law 59

43(B)log

OCTOBER 26, 2021

20, 2021) In this timeshare exit false advertising litigation, the court excludes Wyndham’s expert. Timeshare exit entities like defendant TET used “online advertising and oral sales pitches to timeshare owners to convince them to sign up for TET’s service.” Sussman, 2021 WL 4948099, No. 6:18-cv-2171-GAP-DCI (M.D.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JUNE 15, 2022

Monster alleged that VPX falsely advertised Super Creatine as a source of creatine providing numerous physical and mental benefits, advertising that BANG can improve brain function, has anti-depressive effects, and helps build muscle. VPX also allegedly advertised Super Creatine as providing the health benefits of “creatine.”

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JULY 25, 2024

False advertising: Overjet challenged statements that allegedly falsely indicated that (1) “Videa’s software is safe and effective for various medical purposes,” even though it had not obtained the relevant FDA clearance, and (2) it had “reached a technological milestone in AI development before Overjet.” Overjet, Inc.

Copyright 59

Copyright False Advertising Advertising Advertising 59

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. Brandwatch, obtains data from Twitter under a contract, and then offers various tools to analyze its database. Are the reports advertisements?

Social Media 52

Social Media Reporting Contracts False Advertising 52

43(B)log

JUNE 16, 2022

Defendants NGT and NGE advertised an ability to help customers terminate their timeshare contract or ownership; other defendants were part of the exit process. As detailed below, none of the advertising specifically mentioned Diamond, nor did it direct, instruct nor encourage consumers to stop paying on their timeshare obligations.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

FEBRUARY 8, 2024

However, the advertised rates don’t include the “U.S. The complaint alleged that Sirius XM didn’t adequately disclose the Fee in its ads, such as this one: mailer The promotional rate is prominently displayed, but there’s no express reference to the Fee. Music Royalty Fee in addition to the advertised and promised price.” “At

Music 59

Music Contracts Advertising Advertising 59

43(B)log

APRIL 3, 2024

2024) The court of appeals affirmed the dismissal of FedEx’s false advertising claims (under the Lanham Act and Tennessee Consumer Protection Act), albeit on somewhat different grounds. Collectively they’re called “contracted service providers” (CSPs). Fedex Ground Package System, Inc. Route Consultant, Inc., 23-5456, F.4th

False Advertising 45

False Advertising Contracts Business Advertising 45

43(B)log

SEPTEMBER 7, 2021

She allegedly falsely represented that she was authorized to deliver Londra’s “recording artist and songwriting services. Big Ligas sued for tortious interference and for false advertising and trademark infringement under the Lanham Act. False advertising: “That Ms. This was a contract dispute, not a Yu problem.

False Advertising 59

False Advertising Fair Use Advertising Advertising 59

43(B)log

OCTOBER 10, 2023

30, 2023) Plaintiff alleged New York statutory and common law claims based on allegations that Wendy’s and McDonald’s misleadingly advertised the quantity of food contained in various menu items sold at their restaurants by making the food look bigger in pictures with more toppings and thicker patties. I’m not sure this makes sense.

Advertising 59

Advertising Advertising Social Media Contracts 59

43(B)log

MARCH 4, 2024

29, 2024) Previously, after a bench trial, the court found Albion liable for falsely advertising its caulk dispensing guns as “Made in the USA.” After more evidence, the court found that Albion adequately supported its unclean-hands defense—that Newborn had also made false USA origin claims—until early 2007. Newborn Bros.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

SEPTEMBER 11, 2023

25, 2023) Plaintiffs alleged that Burger King, through its advertisements and in-store ordering boards, “materially overstates” the size of (and the amount of beef contained in) many of its burgers and sandwiches. Breach of contract: Burger King argued that its ads weren’t binding offers.

Advertising 59

Advertising Advertising Contracts Law 59

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

43(B)log

JULY 20, 2022

Chiusa’s claims: willful copyright infringement; breach of the oral distribution agreement; trademark infringement, false advertising, trade dress/trade name infringement, and false designation of origin undre the Lanham Act; a Tennessee Consumer Protection Act claim; and conversion.

False Advertising 72

False Advertising Ownership Registration Designs 72

43(B)log

MARCH 9, 2022

But this doesn’t seem to provide a private right of action; Brown Bottling argued that its references to the Soft Drink Act in its complaint were just providing pertinent history/context for the unfair competition/tortious interference claims. As the licensee, Brown Bottling had “standing to bring false affiliation claims under Section 43(a).”

False Advertising 59

False Advertising Trademark Marketing Marketing 59

43(B)log

JUNE 16, 2022

It contracts with Charities Aid Foundation of America, which in turn delivers donated funds to designated charities. Although members of the public are able to enter for chances to win prizes without paying money, Omaze advertises increased opportunities to win in exchange for larger donations.” I would think it would be much worse!

False Advertising 59

False Advertising Advertising Advertising Designs 59

43(B)log

MAY 2, 2023

21, 2023) ExeGi sued Brookfield for state and federal false advertising/tortious interference. Although there don’t seem to have been surveys on this, “[m]ost of the public and some clinicians incorrectly refer to genus and species as ‘strains.’” ExeGi Pharma, LLC v. Brookfield Pharmaceuticals, LLC, F.Supp.3d 20-CV-192-JPS (E.D.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

Technology & Marketing Law Blog

SEPTEMBER 10, 2022

He paid money to get extra visibility for his dating profile and claims he got poor results, so he sued Bumble for false advertising. Second, the text of the blocker card included both a call-to-action (could have been better, but OK) and reference to the arbitration clause. Alkutkar used the dating app Bumble.

False Advertising 127

False Advertising Marketing Marketing Advertising 127

Technology & Marketing Law Blog

SEPTEMBER 28, 2021

Read literally, all advertising “allow[s] for arranging the sale or purchase of goods,” so this law potentially obligates EVERY ad-supported publisher to undertake the content moderation obligations the bill imposes on online marketplaces. Normally trademark owners aren’t third-party beneficiaries of that contract.

Trademark 138

Trademark False Advertising Advertising Advertising 138

43(B)log

NOVEMBER 5, 2021

3, 2021) SquareTrade sells service contracts for the protection of consumer goods. Abbott alleged that she was misled because she saw references to “protection” on a brochure that she didn’t read and a sales clerk used the word “warranty” in describing the plan. SquareTrade Inc., 2021 WL 5113176, No. 20-cv-02725-JCS (N.D.

Contracts 59

Contracts Business Law Publishing 59

43(B)log

JANUARY 5, 2024

The court kicked out quasi-contract, unjust enrichment, and restitution claims with leave to amend and claims for injunctive relief without leave to amend, but otherwise sustained the basic consumer protection theory. Finally, the court declined to dismiss a nationwide class at this stage.

Contracts 59

Contracts Law Business False Advertising 59

Technology & Marketing Law Blog

APRIL 27, 2024

This is a false advertising lawsuit again the mobile app game Game of Thrones: Conquest. Also, the district court took issue with the 2020 call-to-action referring to the TOS as “Terms of Use” when it was actually the “Terms of Service.” sought to send the case to arbitration. Warner Bros.

False Advertising 84

False Advertising Government Privacy Designs 84

43(B)log

AUGUST 9, 2021

2021) Plaintiffs/Debtors argued, and the court held in relevant part, that defendants (Charter) breached the automatic stay by a literally false and intentionally misleading advertising campaign to induce the Debtors’ customers to terminate their agreements with the Debtors by telling them that bankruptcy risked impairment of their service.

False Advertising 119

False Advertising Advertising Advertising Law 119

SpicyIP

DECEMBER 30, 2023

The Court interpreted the clause on ownership of work made during a contract of service (Section 17(c)) to not apply in situations where there is a contract between equals. The Court limited the scope of Section 17(c) to apply to contracts where the relationship between the parties is akin to that of an apprenticeship.

IP 112

IP Copyright Trademark Intellectual Property 112

43(B)log

AUGUST 3, 2023

Alex Roberts, Multi-Level Lies: Distinctive feature is that laypeople are making advertising claims to friends, social media followers, acquaintances, etc. Exploitative: 99% make no profit/lose money; stuck w/unwanted inventory; exploitative based on false promises of wealth and miracle products—the seller gets free advertising.

Social Media 52

Social Media Fair Use Advertising Advertising 52