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

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.” July 25, 2014), report and recommendation adopted, No. Comment: “First printing” might therefore be different.) Blue Spike, LLC v.

False Advertising 44

False Advertising Advertising Advertising Intellectual Property 44

SpicyIP

JANUARY 30, 2024

They have sued rival restaurant chain Daryaganj for falsely taking credit for the creation of butter chicken. As reported , Monish Gujral, the managing director at Moti Mahal says “ You cannot take away somebody’s legacy … The dish was invented when our grandfather was in Pakistan.” News reports (of which there are several!

False Advertising 116

False Advertising Social Media Inventor Advertising 116

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 the website as a whole was a referral website for Tru Niagen, which advertised Tru Niagen at the top of every page. Thus, any false advertising claim would lie against Albaum, not [directly] against ChromaDex. You can find out more here: [link].

Advertising 78

Advertising Advertising False Advertising Marketing 78

43(B)log

SEPTEMBER 16, 2021

Meredith alleged that Vacasa “has embarked on a smear campaign surgically targeted at [Plaintiff’s] homeowner customers, designed to unfairly snuff out that competition.” The court found that the alleged statements weren’t “commercial advertising” covered by the Lanham Act.

Advertising 57

Advertising Advertising False Advertising Marketing 57

43(B)log

JULY 15, 2024

Butler found that there was no statistically significant difference in cells’ self-reported likelihood of purchasing shoes on StockX, suggesting lack of materiality. First, Nike argued, materiality was irrelevant because literally false claims are conclusively presumed to be material.

False Advertising 67

False Advertising Branding Brands Branding 67

43(B)log

SEPTEMBER 5, 2023

11, 2023) The parties compete in the design of buckling-restrained braces, which are structural devices that help buildings withstand seismic activity. The University issued a report concluding two of the five BRBs did not satisfy American Institute of Steel Construction (AISC) 341-10 requirements. SME Steel Contractors, Inc.

False Advertising 57

False Advertising Law Advertising Advertising 57

SpicyIP

OCTOBER 27, 2023

Interface interference is a tactic that hinders consumers from performing actions like cancelling subscriptions or deleting accounts, such as redirecting them to another page while trying to cancel a pop-up advertisement. This includes endorsements of personal experiences without disclosing the fact that they are paid for it.

Intellectual Property 52

Intellectual Property False Advertising Designs Design 52

43(B)log

NOVEMBER 28, 2022

2, 2022) Before the jury verdict in favor of Monster’s false advertising claim was this opinion resolving evidentiary issues. They weren’t directly asked about the phrase “Super Creatine,” whether participants had prior experiences with or opinions of Bang, or whether they had seen Vital’s advertising in the market.

False Advertising 57

False Advertising Advertising Advertising Social Media 57

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

APRIL 27, 2022

PG&E asked Eco to design a “cutout cover” to prevent animals from coming into contact with “cutouts,” a type of electrical device that rests atop utility poles. The resulting ECC-3, which is designed for cutouts made out of porcelain, is Eco’s most successful product and is also sold to other utility companies.

False Advertising 57

False Advertising Advertising Advertising Reporting 57

43(B)log

JUNE 6, 2023

Enigma sued its competitor Malwarebytes for Lanham Act false advertising and NY business torts for designating its products as “malicious,” “threats,” and “potentially unwanted programs” (PUPs). The district court dismissed the complaint on the grounds that these designations were “non-actionable statements of opinion.”

False Advertising 57

False Advertising Advertising Advertising Business 57

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 3, 2024

2024) The court of appeals affirmed summary judgment in favor of KIND on Bustamante’s false advertising consumer protection class action claims based on KIND’s “All Natural” labeling. Bustamante v. KIND, LLC, 100 F.4th 4th 419 (2d Cir. Without the expert evidence, summary judgment for KIND was appropriate.

False Advertising 62

False Advertising Branding Brands Branding 62

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

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

MAY 19, 2023

Natera’s advertising touted “fewer false positives and fewer false negatives” and offered patients the ability to “[d]iscover more about your baby’s health.” But there was no privity as required for an implied warranty of merchantability, even though plaintiffs alleged reliance on Natera’s advertising.

Advertising 52

Advertising Advertising False Advertising Law 52

43(B)log

MARCH 13, 2023

of respondents reported that they believed that “all of the vanilla flavor” comes from the vanilla plant; 16.6% Unilever’s criticisms boil down to a disagreement as to Dr. Dennis’ survey design choices, which go to the weight to be accorded to Dr. Dennis’ survey results and opinions when determining the merits of Vizcarra’s claims at trial.”

False Advertising 54

False Advertising Branding Brands Branding 54

43(B)log

JUNE 15, 2022

Defendants sell allegedly falsely advertised Cosequin canine joint health supplements, which contain glucosamine and chondroitin as the main active ingredient. They weren’t trying to recover for individualized physical injury to their dogs, but for overpaying for advertised benefits that allegedly weren’t available.

False Advertising 44

False Advertising Advertising Advertising Reporting 44

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. ” I mean, pretty much every physical product meets this definition, right?

Trademark 138

Trademark False Advertising Advertising Advertising 138

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 57

False Advertising Advertising Advertising Reporting 57

43(B)log

APRIL 5, 2024

Plaintiffs allege consumer protection and breach of warranty claims based on PharmaCare’s Sambucol product, a dietary supplement that is advertised to “support immunity” and contain a proprietary extract of black elderberry. reported some health-related benefit, with 33.9% If they did, they got a follow-up: In this survey, only 39.8%

Branding 57

Branding Brands Branding Advertising 57

43(B)log

AUGUST 31, 2021

Marketing materials related to the 2016 version designate the same three valleys as “Regions of Origin,” and describes them as “premiere growing regions along Oregon’s coast.” The 2017 label also references the “coast” and includes a map of Oregon with leaves denoting the locations of the Willamette, Umpqua, and Rogue Valleys.

Graphic Design 54

Graphic Design Government Designs Design 54

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. Each product name has a “part name” (a letter or combination of letters designating the product line) and a “model number” (additional numbers and letters that distinguish parts with different attributes).

False Advertising 57

False Advertising Advertising Advertising Reporting 57

43(B)log

MAY 22, 2023

Compared to the ‘rigorous’ approval process for prescription-drug labels, the TTB process ‘hinges on self reporting’ and reflects only the representations made to it by the distributor, not an endorsement of those claims.” BY VOL’ in light of the other flashier language and design of the packaging.”

Licensing 57

Licensing Law Branding Brands 57

43(B)log

AUGUST 24, 2021

Russell created four sculptural works: “Medusa,” “Polyp,” “Hydra,” and “Ophelia”; there was a dispute about whether the sculptures resemble or embody natural aspects of real-life jellyfish and whether Russell intentionally designed them to look like freshwater jellyfish.

Copyright 80

Copyright Art Copying Reporting 80

43(B)log

SEPTEMBER 22, 2021

9, 2021) Alleged ambiguity didn’t save AB from this false advertising claim. Based on these facts, it was deceptive for AB to advertise Michelob ULTRA Hard Seltzer as “the only” or “the first” “national USDA certified organic hard seltzer.” Suzie’s got a TRO (assisted by the TMA).

Advertising 57

Advertising Advertising False Advertising Government 57

43(B)log

JULY 21, 2023

but also narrows the issues somewhat; the larger infringement, cybersquatting, and false advertising claims can’t be resolved on summary judgment. Axon sued for infringement of the Taser word and design marks and for holding Taser-related domain names for ransom. Axon didn’t seek to enjoin the sales of refurbished Tasers.

False Advertising 52

False Advertising Advertising Advertising Social Media 52

43(B)log

SEPTEMBER 1, 2021

In fact, the name “Shelby” comes from Carroll Shelby, a race car driver and designer for Ford in the mid-20th century. This “Limp Mode” was an intentional design choice; the coolers were removed from those two packages before launch, allegedly to increase profit margins in their volume-leading Technology package.

Advertising 44

Advertising Advertising Technology Reporting 44

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 117

False Advertising Advertising Advertising Law 117

SpicyIP

DECEMBER 30, 2023

The third category lists notable developments on the legislative and policy side and includes important amendments, proposals for amendments, release of policy notes and reports etc. Controller of Patents & Designs Patent Office Mumbai. Controller of Patents and Designs and Raytheon Company v. In Microsoft v.

IP 124

IP Copyright Trademark Intellectual Property 124

43(B)log

SEPTEMBER 20, 2022

Nor did plaintiffs’ survey report provide a way to define a reasonable consumer’s understanding of “All Natural,” because the court excluded it. At deposition, he said he was “test[ing]” the plaintiffs’ theory of liability, but the court interpreted his answers as showing that his questions were designed to support that theory.

Litigation 57

Litigation Contracts False Advertising Reporting 57

43(B)log

NOVEMBER 8, 2023

Malwarebytes, which allowed a false advertising claim to proceed based on one software provider’s use of the terms “malicious” and “threat” to describe its alleged competitor’s software, despite a dissent raising free speech arguments. Then I’ll talk about the 9 th Circuit case Enigma Software v. Trademark: In Jack Daniel’s v.

False Advertising 73

False Advertising Advertising Advertising Trademark 73

LexBlog IP

FEBRUARY 1, 2023

at 997-98, Rogers limited the application of the Lanham Act’s prohibition on false advertising “to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. ” Id. In VIP Products v. Jack Daniels Products , 953 F.3d 3d 1170 , 1172 (9 th Cir.

Trademark 52

Trademark Intellectual Property Branding Brands 52

43(B)log

APRIL 26, 2022

The trial court found Ethicon committed 153,351 violations of the Unfair Competition Law (UCL) and 121,844 violations of the False Advertising Law (FAL) and imposed a $1,250 civil penalty for each violation. Materiality can also be relevant to whether class treatment is justified in a private FAL/UCL restitution action.

Advertising 57

Advertising Advertising Marketing Marketing 57

43(B)log

FEBRUARY 25, 2023

These surveys are now designed to suppress that uncertainty and not let it appear in the courtroom b/c we just want numbers. People are notoriously bad at reporting on their own mental processes and that’s what we’re asking them to do. It doesn’t work so well for advertising! Most people are not really sure!

Trademark 70

Trademark Marketing Marketing Advertising 70