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by Dennis Crouch The Federal Circuit is set to consider the use of terms like “patented,” “proprietary,” and “exclusive” in commercial advertising can be actionable under § 43(a)(1)(B) of the Lanham Act when their use is not entirely accurate. Crocs largely prevailed in those actions. ” Dawgs brief.
In responding to the unprecedented COVID-19 challenges, companies around the world are rushing to capitalize on the current crisis by advertising the effectiveness of their products in containing the virus spread. As fear and anxiety proliferate during this pandemic, fraudulent or falseadvertisements also surge and explode.
Also, there should not be a “use in commerce” when the advertiser (here, Troia) doesn’t actually offer any goods or services in the marketplace. As the court says later, “it seems unlikely that an Internet user who reads defendant’s advertisements would believe that they belong to or are endorsed by plaintiffs.”
The Ninth Circuit has held: “[i]n some cases, the threat of future harm may be the consumer’s plausible allegations that she will be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product although she would like to.”
Lynd advertised the Product as effective against the coronavirus. Ultimately, AHBP took an exclusive license to sell the product in Argentina, with purchasing and advertising/marketing spend minimums. the Lanham Act falseadvertising claim survived. And proximate cause?
This allowed McCormick to advertise what seemed like an attractive lower price and charge more. Thus, for disgorgement of profits, a plaintiff need only show the defendant’s “sales of the allegedly falselyadvertised products,” after which the burden shifts to the defendant to prove “any costs or deductions.” Edriver Inc.,
But when advertising or marketing materials overstate the scope of patent or other IP rights, they may create the risk of a falseadvertising claim. Patented technologies or features can be valuable selling points, setting your products apart from the competition. By: Fenwick & West LLP
17, 2023) Another entry in the “courts treat Lanham Act falseadvertising very differently than Lanham Act trademark infringement, despite identical damages provisions” line. CareDx sued Natera for falseadvertising. Natera, Inc., 19-662-CFC, 2023 WL 4561059 (D. Natera made superiority claims for its Prospera.
The court says that Amazon “easily satisfies” this factor: Plaintiff’s claims are all based on the theory that Defendants ‘continue to allow unlawful sellers to maintain their accounts’ and ‘permit them to advertise’ on Defendants’ website. This argument has failed so many times. Google opinion.
11, 2023) Plaintiff alleged that defendant MGD advertises and sells milk that is one hundred percent from cows outside of Hawai‘i. Plaintiffs’ claims sought to hold the dairy farmers directly or contributorily liable under the Lanham Act, and alleged unfair competition/falseadvertising/deceptive trade practices under Hawaii law.
Rebecca Tushnet and I are pleased to announce the sixth edition of our casebook, Advertising & Marketing Law: Cases & Materials. We also have two online-only chapters on housing discrimination (Chapter 20) and political advertising (Chapter 21), both also freely downloadable. Chapter 2: What is an Advertisement?
Vitamins Online sued Heartwise under the Lanham Act and Utah’s Unfair Competition Law for falseadvertising about the ingredients of its competitive nutritional supplements and manipulating those products’ Amazon reviews. NatureWise’s products advertised that they met the same Dr. Oz-endorsed requirements. Heartwise, Inc.,
Effervescent, the Federal Circuit ruled that falselyadvertising that a product feature is patented can constitute a violation of the Lanham Act. On October 3, 2024, in Crocs v. All the way back in 2006, Crocs sued several competitor shoe distributors for patent infringement. By: Sunstein LLP
Here, the city successfully wins remand (and a fee award) in this opinion rejecting removal of its falseadvertising suit against Exxon, other fossil fuel companies, and their top trade association for violations of New York City’s Consumer Protection Law. Following a similar case, Connecticut v.
Most of the claims failed on summary judgment, but part of Woodland’s claim against Fiskars for falseadvertising, based on Fiskars’s statements about the cutting power of its tools, and some of its statements that certain products were designed in the United States, did create factual issues for trial.
ZimVie intervened and counterclaimed for declaratory judgment of invalidity, cancellation fo the color marks registration, declaratory judgment of noninfringement, falseadvertising under the Lanham Act and California law, and tortious interference. ZimVie responded that the commercial speech exception applied.
It didn’t get a chance to decide the falseadvertising claims, which I think reflects courts’ relatively lax approach to TM compared to the rigors to which falseadvertising claims are subjected before reaching a jury; personally, I likely would have gone the other way. It was insufficient to provide: 1.
Brough Brothers alleged that Fresh Bourbon falselyadvertised that Fresh Bourbon is the first black-owned bourbon distillery in Kentucky, and made other related claims. If a company makes a literally false statement, then it can be presumed that the consumer who receives the statement was deceived.
On October 3, 2024, the Federal Circuit held that a falseadvertising cause of action arises where a party falsely claims that it holds a patent on a product feature and advertises the feature in a manner that causes consumers to be misled about the nature, characteristics, or qualities of the product. Crocs, Inc.
Court of Appeals for the Tenth Circuit was tasked with excavating the truth behind claims of falseadvertising and copyright infringement. In a case that pitted two sellers of construction equipment against each other — I Dig Texas, LLC v. Creager — the U.S.
8, 2023) When does TM logic creep into falseadvertising cases? The screenshot was “commercial advertising or promotion.” On materiality, it sufficed to allege that brands pay for its services and Tundra’s falseadvertising influences brands to purchase Tundra’s services instead of Faire’s services. Tundra, Inc.,
Rebecca Tushnet and I are pleased to announce the seventh edition of our casebook, Advertising & Marketing Law: Cases & Materials. We also have two online-only chapters on housing discrimination (Chapter 20) and political advertising (Chapter 21), both also freely downloadable. Price: $12 * Kindle.
As far as the Court can tell, … PIRG does no work addressing false or misleading labeling for bed sheets, textiles more generally, or even falseadvertising as a category. So what was the problem? The cy pres doctrine simply allows for a distribution that achieves those benefits indirectly.”
It advertised “This device was one of the most popular items on a popular 3D printing website with over 20,000 unique downloads” on its website, at a time when Leszczynski’s Thingiverse page displayed that his Cube had been downloaded 20,000 times. Falseadvertising: Only ok against Kitchen Cube.
30, 2024) (R&R) Recommendation: Dastar should block Qingdao’s Lanham Act falseadvertising counterclaims based on Lashify’s claim to be the originator of lash technology, but false patent marking counterclaims should survive. Qingdao Lashbeauty Cosmetic Co., 2024 WL 629985, No. W-22-CV-00776-ADA-DTG, No. 1, 2017 to Apr.
3, 2024) Intuit, which makes TurboTax and has had some advertising troubles of its own (hey, check out the IRS Free File program , for taxpayers with AGI of $84,000 or less and with many fillable forms for those with more), sued HRB (Block) for its advertising of a competing tax product, and succeeded in part. HRB Tax Gp.,
To many trademark owners, it’s a simple decision to sue when the advertiser includes the trademark in the ad copy. More Posts About Keyword Advertising. Griper’s Keyword Ads May Constitute FalseAdvertising (Huh?)–LoanStreet Google. * Competitive Keyword Advertising Claim Fails–Reflex Media v. LoanStreet v.
You can see Seeking Arrangements’ ad (highlighted) showing above Luxy’s own ad and mixed in with ads for unrelated products: The court says: Plaintiffs’ advertisement does not contain the word “Luxy” or appear to cause any more confusion than the other three advertisements. More Posts About Keyword Advertising.
Defendants allegedly copied key components of Trackman’s copyrighted software and falsely suggested, in promotions and advertisements, that defendants were authorized to use the well-known courses in their game. Although the court dismissed a contract claim, copyright and falseadvertising claims survived.
The advertising bit: Defendants allegedly misled New York customers into “believing that unfinished frames and receivers are legal workarounds to New York’s gun control laws, as well as federal law.” came in the midst of other advertising language, such as “Various colors available,” and “no RED TAPE. It was not. NO Registering.
2, 2024) Noriega alleged that Abbott’s PediaSure falselyadvertised that it was “[c]linically proven to help kids grow.” Abbott Laboratories, F.Supp.3d 3d -, 2024 WL 402925, No. 4014 (PAE) (S.D.N.Y.
A Florida medical spa has settled a federal lawsuit with Houston-based rapper 50 Cent over a photo he took with its owner that was later allegedly used on social media to promote the business' services without his authorization.
Amazon’s Brand Registry advertises “Automated Protections” that are “[p]owered by Amazon’s Machine Learning.” Falseadvertising, Lei defendants: The complaint didn’t explain how “designed in the United States but … manufactured in China” was materially deceptive and thus didn’t meet FRCP 9(b) pleading standards.
15, 2023) Simpson sued its competitor MiTek for using Simpson part numbers for structural connectors/fasteners for use in the construction industry in its catalogs/other promotional material; the court here, after a nonjury trial before the magistrate judge, rather comprehensively rejects its falseadvertising, trademark, and copyright claims. (It
million consent judgment, which defendants touted in a press release and advertised on Zinus’s website even after the court vacated the stipulated judgment. Courts have generally harmonized the Lanham Act with the Patent Act by requiring bad faith before claims about patent infringement can constitute falseadvertising.
The presentations were plausibly “commercial advertising or promotion” even if described as “seminars” and “continuing education courses.” The Seventh Circuit has said that face to face communication isn’t “commercial advertising or promotion” [though query whether that makes any sense if there’s a repeated script].
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.
But the FDA, independent reviews at scientific journals, and even some of Amgen’s own employees criticized the advertising claims as unsupported and misleading. According to Defendant’s internal memoranda, the advertising campaign was designed to “optimally position Onpro in [the] face of biosimilar competition.” Sandoz Inc.
or falseadvertising – the defendant claims to be the ‘inventor of Butter Chicken and Dal Makhani’; or is there an actual ‘invention’ in question – owners of both restaurants call themselves ‘inventors’ of the dish? Some reports ( here and here ) suggest that the dispute may be related to false or misleading advertising.
Shkipin’s amended falseadvertising counterclaim fails again. To establish that HomeLight proximately caused HomeOpenly to suffer a loss of sales, Mr. Shkipin would need to show how deceptive statements about HomeLight directed at shoppers on HomeLight’s own website necessarily caused advertisers not to buy ads from HomeOpenly.
21, 2024) ECRI and its CEO sued Ferens, a former ECRI employee, for various things including defamation, IIED, violations of trade secret law, and Lanham Act falseadvertising. The Glassdoor review was not “commercial advertising or promotion.” This was the only conduct relevant to the Lanham Act claim.
This case hit my alerts because of its discussion about keyword advertising, but first, I have to digest how the court got there. ” More Posts About Keyword Advertising * Internal Search Results Aren’t Trademark Infringing–PEM v. ” That prompted this litigation. ” UGH.
Eric Goldman and I are pleased to announce the seventh edition of our casebook, Advertising & Marketing Law: Cases & Materials. We also have two online-only chapters on housing discrimination (Chapter 20) and political advertising (Chapter 21), both also freely downloadable. Price: $12 * Kindle. Price: $30 + shipping and tax.
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