43(B)log

DECEMBER 15, 2023

were not designed to protect originality or creativity.” “Yet Yet that is precisely what Plaintiff seeks to protect in this case: the originality and novelty of its own cooler design.” There was no meaningful distinction between claims of being the “first” and claims of inventorship.

False Advertising 44

False Advertising Advertising Advertising Intellectual Property 44

43(B)log

OCTOBER 6, 2021

17, 2020) A lot of stuff here; I will ignore the non-false advertising related aspects of this mostly antitrust case. The court says the usual not-good things about false advertising’s relationship to antitrust, unfortunately: Deceptive speech usually doesn’t violate antitrust laws. 17-md-2785-DDC-TJJ (D.

False Advertising 44

False Advertising Advertising Advertising Marketing 44

43(B)log

SEPTEMBER 16, 2021

The parties previously partnered nonexclusively so that PureThink would sell and support the commercial version of Neo4j; upon termination, PureThink expressly agreed to “cease using any trademarks, service marks and other designations of Plaintiffs.” Summary judgment granted on state and federal false advertising claims.

False Advertising 62

False Advertising Advertising Advertising Licensing 62

43(B)log

AUGUST 11, 2021

Although in the copyright decision, the court made reference to “rather surprising oversights,” UpCodes corrected issues when notified by ICC. UpCodes, Inc., 2021 WL 1236106, Nos. 6261 (VM) & 20 Civ. 4316 (VM) (S.D.N.Y.

False Advertising 82

False Advertising Copying Advertising Advertising 82

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

LexBlog IP

MARCH 6, 2023

JC Penny, for example, has been hit with a class action lawsuit in the Southern District of California over its alleged advertising practice of using “false reference pricing.” The products, Carranza claims , were never sold at the listed reference price as advertised. Do the claims have merit?

False Advertising 52

False Advertising Advertising Advertising Settlement 52

43(B)log

JANUARY 27, 2023

24, 2023) WS sued Wayfair, alleging patent infringement, Lanham Act false advertising, Massachusetts and California statutory unfair competition and Massachusetts false advertising based on alleged copying of West Elm products. Wayfair moved to dismiss the false advertising and unfair competition claims.

False Advertising 57

False Advertising Advertising Advertising Designs 57

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. Lanham Act Commercial Advertising or Promotion. The Lanham Act only applies to “commercial advertising or promotion.” The result is ugly. I really do hate this case.

Law 59

Law False Advertising Advertising Advertising 59

43(B)log

AUGUST 5, 2022

LFI allegedly used the “concepts, designs and ideas” from GDI’s samples to launch a new line of products with a larger cosmetics company, Morphe. Lanham Act false advertising: Were the statements “commercial advertising or promotion” even though not in a conventional ad? Insider Inc.

Advertising 57

Advertising Advertising False Advertising Contracts 57

43(B)log

NOVEMBER 27, 2023

Design Gaps, Inc. 21, 2023) Design Gaps produces custom cabinetry for high-end homes; Hall is a former employee of Design Gaps who signed a nonsolicitation/noncompete clause but went to work for a design studio that was part of Design Gaps’ main competition, Peters. Hall, 2023 WL 8103156, No.

Copying 57

Copying False Advertising Designs Design 57

43(B)log

DECEMBER 1, 2022

OSD Audio then sued Outlaw under §512(f), and Outlaw counterclaimed for false advertising and unfair competition under the Lanham Act, copyright infringement, and trade libel. Lanham Act: The user manual did not constitute “commercial advertising or promotion.” For the copyright claim, Outlaw didn’t show irreparable harm.

Advertising 62

Advertising Advertising False Advertising Copyright 62

43(B)log

NOVEMBER 27, 2023

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. Commercial advertising or promotion: A separate problem. Recall notice: Eli Lilly & Co. Roussel Corp., 2d 460 (D.N.J.

Advertising 57

Advertising Advertising Marketing Marketing 57

43(B)log

FEBRUARY 17, 2022

Was this commercial advertising or promotion? Elysium argued that Right of Assembly was “a marketing website for Tru Niagen for which ChromaDex pays commissions to Shelly Albaum for Tru Niagen customers referred through the website.” Thus, any false advertising claim would lie against Albaum, not [directly] against ChromaDex.

Advertising 78

Advertising Advertising False Advertising Marketing 78

43(B)log

MARCH 14, 2024

11, 2024) I have a long-running interest in Rule 68 offers of judgment, and this case involves an interaction with false advertising law! This judgment of infringement comes nearly one year to the day after Crocs filed lawsuits against 21 companies alleging infringement of its registered trademark rights in its clog designs. …

False Advertising 57

False Advertising Advertising Advertising Branding 57

43(B)log

OCTOBER 11, 2023

Plaintiff alleged that Sazerac designed this malt version to look just like the original one, misleading consumers in violation of New York laws on deceptive practices and false advertising. Sazerac didn’t explain why it couldn’t use “Malt Beverage with Natural Flavors” (or some other general reference) instead.

False Advertising 57

False Advertising Advertising Advertising Designs 57

43(B)log

JULY 15, 2024

“The test group was presented five pages from StockX’s website featuring the Authenticity Statements, and the control group was presented with similar webpages that featured versions of those statements that omitted references to ‘authentication’ or substituted them with references to ‘inspection.’”

False Advertising 67

False Advertising Branding Brands Branding 67

43(B)log

JUNE 11, 2024

Malwarebytes argued that its characterizations of Enigma’s products as “malicious” and a “threat” didn’t occur in commercial advertising or promotion but rather as part of the operation of its products. Were the statements in an advertisement? This was plausibly an advertisement for purportedly superior products.

Advertising 62

Advertising Advertising Designs Design 62

43(B)log

AUGUST 25, 2021

Plaintiff alleges that subscribers “universally understand[ ] that a product designated ‘O’ is an [over-the-counter (“OTC”) ] drug, available over-the-counter and without physician supervision.” Although Alfasigma’s products were historically designated as F, First Databank reclassified them as O.

False Advertising 70

False Advertising Advertising Advertising Designs 70

43(B)log

AUGUST 26, 2022

24, 2022) This seems like a silly result to me, shifting the burden to comparative advertisers, but it's often much harder to get summary judgment in a trademark case than in comparable cases. PennEngineering claims a PEM family of marks and sued Peninsula for trademark infringement, counterfeiting, false advertising, and unfair competition.

False Advertising 57

False Advertising Advertising Advertising Trademark 57

43(B)log

MARCH 6, 2024

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.” Qoins also referred to SouthState in its responses to customer reviews, saying it was responsible for withholding funds. Qoins Technologies, Inc.,

False Advertising 44

False Advertising Advertising Advertising Business 44

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.” The prior part explained the most recent ruling, a devastating but not unexpected loss for hiQ. Don’t worry! You’re not alone.

Blogging 118

Blogging Law Contracts Cease and Desist 118

43(B)log

JANUARY 27, 2023

That supplier worked with a foreign supplier to mimic the Stiles Razor, using “photographs and physical samples of the Stiles razor as references.” The remaining design patent claims also failed. The accused design’s grip was also contoured and textured, not angular and smooth.

False Advertising 57

False Advertising Design Patent Designs Design 57

43(B)log

MARCH 20, 2023

WatsonSeal Marketing sued for false advertising under the Lanham Act, tortious interference with business relations under Alabama law, and unjust enrichment under Alabama law, but, having kicked out the Lanham Act claims, the court didn’t proceed any further with the state claims. Nor was it concededly an ad.

False Advertising 58

False Advertising Advertising Advertising Marketing 58

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 110

Journalism False Advertising Advertising Advertising 110

43(B)log

APRIL 25, 2023

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

43(B)log

AUGUST 26, 2021

5, 2021) The plaintiff benefits from very generous treatment of its false designation and copyright claims, in the process stripping false designation of anything other than a prohibition on copying/vitiating both Wal-Mart and Dastar. 2021 WL 1253803, No. 20-cv-06957-VKD (N.D. The court agreed!

Designs 63

Designs Design Copying Copyright Infringement 63

43(B)log

JUNE 10, 2024

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. The challenged language includes “to help manage blood sugar,” “#1 doctor recommended brand,” and “scientifically designed for people with diabetes.” 3d -, 2024 WL 2843092, No.

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

JULY 20, 2022

CC has a recent trademark registration for a design mark “consist[ing] of the stylized wording ‘COLOR COPPER.COM”, [with] a diamond shape between the wording ‘COLOR’ and ‘COPPER’ made up of four smaller diamonds, each diamond having a pattern inside of it,” COPPER.COM disclaimed. There’s no written agreement” will do it.]

False Advertising 70

False Advertising Ownership Registration Designs 70

43(B)log

DECEMBER 23, 2022

Although expressing some skepticism, the court found that they stated a valid false advertising claim. First Amendment: Plaintiffs sufficiently alleged that the trailer was false, commercial speech, defeating a First Amendment defense. of a motion picture.” The fraudulent UCL and FAL claims qualified. Those were all present.

False Advertising 70

False Advertising Advertising Advertising Social Media 70

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

43(B)log

JUNE 14, 2022

May 25, 2022) Alcon sued Lens.com for federal and state false advertising and trademark claims. 1994), “before considering consumer survey evidence, a district court must, first, determine whether the designation of geographic origin is ‘geographically descriptive.’ The Lanham Act false advertising counterclaim was dismissed.

False Advertising 70

False Advertising Trademark Advertising Advertising 70

43(B)log

JUNE 16, 2022

It contracts with Charities Aid Foundation of America, which in turn delivers donated funds to designated charities. For certain “celebrity experiences,” 60% of the money donated goes to CAFA to be paid to the designated charity, but for Omaze-owned campaigns, Omaze keeps 85%. Omaze now buys its own swag for contests.

False Advertising 57

False Advertising Advertising Advertising Designs 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. The humorous or mocking intention seems absent from Supreme's photography.

Copyright Infringement 52

Copyright Infringement False Advertising Branding Brands 52

43(B)log

JANUARY 10, 2023

6, 2023) Norman sued Gerber for allegedly falsely advertising its baby food/infant formula products as “NON GMO Not Made With Genetically Engineered Ingredients” on the front of the package, and also on the back above the ingredients list. No reference to trademark standards, interestingly.) Gerber Prods. 2023 WL 122910, No.

False Advertising 57

False Advertising Advertising Advertising Marketing 57

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. incorporation of documents into the complaint by reference, both often significant in false advertising cases.

Branding 57

Branding Brands Branding False Advertising 57

Technology & Marketing Law Blog

SEPTEMBER 28, 2021

It claims to focus on “counterfeits” that could harm consumer “health and safety,” but those are both lies designed to make the bill seem narrower and more balanced than it actually is. However, this bill is itself a giant counterfeit. Unlike the other services, these services get a 6 month phase-in period).

Trademark 138

Trademark False Advertising Advertising Advertising 138