Technology & Marketing Law Blog

OCTOBER 9, 2024

Fifteen years ago, courts generally avoided categorical pronouncements about the legitimacy of competitive keyword advertising. The message from the Second Circuit is plain: stop bringing competitive keyword advertising cases. This ruling doesn’t address the scenario where the advertiser’s ad copy references the trademark.

Advertising 98

Advertising Advertising Trademark False Advertising 98

43(B)log

AUGUST 1, 2022

Plaintiffs also sufficiently pled that they were directly harmed by RJR’s false and misleading advertising. Liability attaches to those who “[k]nowingly makes a false representation” as to the product “for sale,” and the definition of “sale” explicitly includes an “attempt to sell” the product or service. “[I]ndividuals

False Advertising 59

False Advertising Advertising Advertising Law 59

43(B)log

AUGUST 12, 2021

Safelite allegedly falsely advertised that (1) “if damage spreads beyond the size of a dollar bill, a replacement will be necessary”; (2) “when a chip is smaller than a dollar bill, it can usually be repaired without replacing the windshield.” Safelite counterclaimed for trade secret theft not related to advertising.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

SEPTEMBER 30, 2021

We are definitely not there yet. I don’t have a very strong position on whether misleadingness should be empirically or normatively assessed, but I do think courts should be clear on what they’re doing and not bounce unpredictably between the two concepts.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

APRIL 17, 2023

The court dismissed most of Quincy’s claims (counterfeiting, trademark infringement, and false designation of origin) except for false advertising—a rare (and conceptually sound) approach that other, non-default cases could benefit from. Even after default.

False Advertising 45

False Advertising Advertising Advertising Trademark 45

43(B)log

JUNE 26, 2023

lawsuits against clubs for advertising them with images of models without those models’ consent. The relevant policy provides coverage for bodily injury, property injury, and advertising injury, subject to certain conditions and exclusions. Covered personal/advertising injury included d.

Advertising 56

Advertising Advertising False Advertising Intellectual Property 56

43(B)log

MAY 19, 2023

Roblox sued for copyright infringement, false advertising, trademark infringement, false association and false designation of origin, trade dress infringement, intentional interference with contractual relations, breach of contract, and false advertising and unfair competition under California law.

Copying 94

Copying False Advertising Social Media Advertising 94

43(B)log

AUGUST 25, 2021

This was allegedly still false and misleading, and First Databank allegedly falsely advertised that it “compile[s]” the relevant information in its database and for its coding determinations from the FDA and from manufacturers, such as Alfasigma. That was too extensive, so the claims all failed.

False Advertising 72

False Advertising Advertising Advertising Designs 72

43(B)log

SEPTEMBER 27, 2021

13, 2021) Not having a materiality or harm requirement really makes a difference in trademark cases compared to false advertising cases—look at the reasons this false advertising claim fails. AFC sued MedHelp for Lanham Act false advertising.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

MARCH 21, 2022

Bimbo sells Grandma Sycamore’s Home-Maid Bread; it sued defendants, who include the baker who developed the Grandma Sycamore’s recipe, for trade secret misappropriation, trade dress infringement, and false advertising when it sold a comparable bread product, Grandma Emilie’s, with the tagline “Fresh.

False Advertising 72

False Advertising Advertising Advertising Designs 72

43(B)log

MARCH 27, 2023

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. American Soc’y of Anesthesiologists, Inc., 4th -, 2023 WL 2621131, No. 22-1411 (3d Cir.

Journalism 111

Journalism False Advertising Advertising Advertising 111

43(B)log

MARCH 6, 2024

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. The court dismissed the complaint—the false advertising claims with prejudice.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

Technology & Marketing Law Blog

SEPTEMBER 28, 2021

.” Clearly, the second part of that definition targets Amazon and other major marketplaces, such as eBay, Walmart Marketplace, and Etsy. The first part of the definition includes services with “publicly interactive features that allow for arranging the sale or purchase of goods.”

Trademark 144

Trademark False Advertising Advertising Advertising 144

43(B)log

SEPTEMBER 13, 2022

12, 2022) An insurance coverage case about a false advertising claim that doesn’t turn on “advertising injury”! Did the undefined term “unfair trade practices” include consumer protection and false advertising? DBA Godiva Chocolatier, Inc. Endurance Am. N21C-10-100 MMJ CCLD, 2022 WL 4128608 (Del.

False Advertising 59

False Advertising Settlement Advertising Advertising 59

Technology & Marketing Law Blog

JANUARY 8, 2024

This is a case involving a trademark owner and a competitive keyword advertiser. The court says there can’t be MULTIPLE instances of INITIAL interest confusion: By definition, initial interest confusion is “confusion that creates initial customer interest.” Google * Competitive Keyword Advertising Claim Fails–Reflex Media v.

Trademark 98

Trademark Advertising Advertising False Advertising 98

43(B)log

SEPTEMBER 20, 2024

Ortho black trade dress This was sufficiently definite; it didn’t include terms like “such as” or “for example,” which can be problematic. 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.

False Advertising 52

False Advertising Copyright Advertising Advertising 52

43(B)log

SEPTEMBER 6, 2023

Lanham Act false advertising: Allen alleged that Toyota’s statements that “[t]he purchase. a breach of your dealer agreement” constituted false advertising because the agreement in fact allows for purchases of Toyota parts from other sources, including for non-warranty repairs.

Marketing 59

Marketing Marketing False Advertising Advertising 59

43(B)log

SEPTEMBER 13, 2024

J-B has used unqualified “Made in USA” claims in its advertising. ITW advertises “the interchange between its products and the matching OEM manufacturer products” in its materials, sometimes including OEM interchanges for specific automotive brands in its package advertising. Epoxy: In J-B Weld Co., Gorilla Glue Co.,

Advertising 59

Advertising Advertising False Advertising Marketing 59

43(B)log

JANUARY 21, 2022

18, 2022) Guardant sued its competitor Natera over an alleged “campaign of false and misleading advertising directed at” Guardant’s new product Reveal, a liquid biopsy cancer assay for early-stage colorectal cancer (CRC). Guardant Health, Inc. Natera, Inc., 2022 WL 162706, No. 21-cv-04062-EMC (N.D.

False Advertising 64

False Advertising Advertising Advertising Journalism 64

43(B)log

OCTOBER 11, 2021

Both sides now claim the other is liable for false advertising, among other claims.” Defendants also allegedly infringed RCI’s trademarks by using photographs of Roberto Coin jewelry and RCI’s logo in Kings Stone’s advertising after RCI terminated the relationship. And yes even borsheims has to be held accountable.”

Marketing 59

Marketing Marketing False Advertising Advertising 59

43(B)log

AUGUST 23, 2021

3, 2021) Sultanis alleged that petfood sold as being made with “free-run” poultry and “wild-caught” fish was falsely advertised. Even if the court were to take judicial notice of the Canadian definition, “it is highly implausible that Ms. Champion Petfoods USA Inc., 2021 WL 3373934, No. 21-cv-00162-EMC (N.D.

False Advertising 83

False Advertising Advertising Advertising Marketing 83

Technology & Marketing Law Blog

JUNE 18, 2023

And then…the Ninth Circuit got the case again… The Majority Opinion After the Supreme Court cert denial, the district court ruled that Malwarebytes’ “malicious” and “threat” classifications were “non-actionable statements of opinion” and thus could not support a Lanham Act false advertising claim.

Blogging 105

Blogging False Advertising Litigation Marketing 105

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.” Wyndham Vacation Ownership, Inc. Sussman, 2021 WL 4948099, No.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

Copyright Lately

SEPTEMBER 29, 2024

Atari’s copyright infringement lawsuit against State Farm advances, underscoring the importance of careful clearance in advertising. It looks like Jake from State Farm is definitely going to blow through his deductible, as the insurance giant lost its bid to declare game over on a lawsuit brought by video game publisher Atari Interactive.

Fair Use 95

Fair Use Copyright Artwork Social Media 95

43(B)log

DECEMBER 8, 2022

At trial, Republic alleged that HBI engaged in false advertising under the Lanham Act, unfair competition, and violations of the IUDTPA. It also rejected the Lanham Act false advertising claim, but found unfair competition and IUDTPA violations by HBI. And the advertising implies that the paper is made in Alcoy.

False Advertising 59

False Advertising Advertising Advertising Editing 59

43(B)log

AUGUST 20, 2021

24, 2021) Plaintiffs sought class certification of their false advertising claims based on the claims that KIND falsely advertised “All Natural / Non-GMO,” “Non-GMO,” and “No Genetically Engineered Ingredients”; KIND sought to exclude expert reports. In re KIND LLC “Healthy and All Natural” Litig., 2021 WL 1132147, Nos.

False Advertising 45

False Advertising Advertising Advertising Litigation 45

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. Bumble made a series of miscues, including several problems with the email notice and the lack of a definitive screenshot of its blocker card. Alkutkar used the dating app Bumble. What went right?

False Advertising 141

False Advertising Marketing Marketing Advertising 141

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. means, because none of the allegedly false statements actually said “source of creatine.”

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

AUGUST 25, 2022

The false advertising parts: Jeong alleged that Nexo advertised to consumers that it does not own users’ collateral (e.g., This allegedly breached Nexo’s duty of good faith and fair dealing and constituted a violation of California’s UCL. The court partially granted/denied Nexo’s motion to dismiss.

False Advertising 45

False Advertising Ownership Advertising Advertising 45

43(B)log

DECEMBER 23, 2022

Although expressing some skepticism, the court found that they stated a valid false advertising claim. Thus, Universal argued that the alleged misrepresentation was too vague and non-specific to definitely represent that viewers would see De Armas or her segment in the movie. of a motion picture.”

False Advertising 72

False Advertising Advertising Advertising Social Media 72

43(B)log

MAY 2, 2022

The injunctive relief does what this xkcd cartoon mocks: Alt text: Blatantly banking on customers not understanding that it's like a Hollywood studio advertising that their new movie was 'watched by Roger Ebert'. The settlement included a fund of up to $8 million; unclaimed money would be returned to defendants. million. (If

Settlement 118

Settlement Advertising Advertising Marketing 118

43(B)log

SEPTEMBER 3, 2021

The court found that plaintiffs plausibly showed that ski passes were encompassed within the definition of “services.” But “a reasonable consumer would understand this was a promise for a definite period: the period of the 2019/20 year ‘during which snow conditions allow for skiing and when people typically go skiing.’”

Contracts 59

Contracts Advertising Advertising Licensing 59

The IPKat

JUNE 27, 2022

On 24 June 2022, BAYC sued Ryder Ripps, a conceptual artist and NFT creator for trade mark infringement, unfair competition, false advertising, cybersquatting and other cause of actions before the Central District of California. This is a U.S a wallet).

Non-Fungible Tokens 135

Non-Fungible Tokens Contracts Copying Art 135

43(B)log

SEPTEMBER 7, 2021

Perhaps overreacting, Wakefern sued for trademark infringement and false advertising in violation of the Lanham Act and violation of state unfair competition law, which is coextensive and thus disappears from our story. False advertising: Not commercial advertising or promotion.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

AUGUST 9, 2024

Mary Catherine Amerine, Reasonably Careless Consumers in False Advertising and Trademark Consumers can devote much more (or less) time to a decision than seems rational for the amount of risk/benefit in their lives. Court expects consumers to be reasonably prudent in both TM and false advertising. But, surprise!

Trademark 59

Trademark False Advertising Advertising Advertising 59

43(B)log

MARCH 28, 2024

26, 2024) Defendant, d/b/a Wonderland, operated an adult entertainment club and was one of the many such sued by various models for using their images in advertising without their consent from 2015 to 2019. The court found that definition of “Exhibitions and Related Marketing” was so broad as to “preclude coverage in almost any circumstance.”

Advertising 64

Advertising Advertising Settlement Contracts 64

43(B)log

SEPTEMBER 23, 2022

He also alleged that the results of a survey show that 88 percent of consumers are deceived by the White Baking Morsels’ advertising and incorrectly believe they contain white chocolate.

False Advertising 59

False Advertising Advertising Advertising Law 59