43(B)log

MARCH 29, 2024

Schotte alleged a “substantial price premium” of at least 25% more for the Wipes as compared to non-flushable wipes from the same brands. I think that’s definitely wrong, but it’s consistent with a pattern where courts allow themselves—or juries they supervise—to find facts but don’t like legislatures doing so.

Law 59

Law Advertising Advertising Branding 59

43(B)log

APRIL 25, 2023

The front label contains the brand name “Topo Chico,” the word “Margarita,” and the phrase “Hard Seltzer.” Likewise, Warren’s claim that the use of the Topo Chico brand name would lead reasonable consumers to believe that it contains sparkling mineral water sourced from Monterrey, Mexico was not plausible. Coca-Cola Co.,

Branding 59

Branding Brands Branding False Advertising 59

43(B)log

FEBRUARY 18, 2022

Definition should be broader than sale/transportation of goods in commerce. A: False advertising context: FTC/state AGs. But using yellow for a saccharin packet might be false advertising, b/c it would communicate the presence of sucralose rather than saccharin. Genre—modern typeface might send a different message.

Trademark 59

Trademark False Advertising Fair Use Branding 59

43(B)log

JULY 15, 2022

The sculptures included a logo registered as (1) the cattle brand for the ranch and (2) the trademark of the College.” They also allegedly solicited monetary donations purporting to preserve Spence’s “dream” and made false statements about his wishes, e.g., “Would Gerry Spence have let this happen?” [I

Trademark 59

Trademark False Advertising Advertising Advertising 59

43(B)log

FEBRUARY 24, 2024

A variant of separating the mark from the brand; not seeing it in all categories, and we may have a world in which some marks—maybe the 1%--are not divided from brands but the others are. Brands can choose to “gate” on Amazon with authorization letters, but how does the consumer know the seller will stick to selling genuine goods?

Fair Use 45

Fair Use Branding Brands Branding 45

43(B)log

JUNE 27, 2024

Also, whether “handcrafted” may be deceptive in a particular case depends, at least in part, on the size of the brand holding its products out as “handcrafted,” and plaintiffs sufficiently alleged that Blue Ice was not a mass seller, so reasonable consumers could believe it “handcrafted” its vodka. Have a bottle delivered to your door.

Advertising 64

Advertising Advertising Social Media Law 64

43(B)log

AUGUST 3, 2023

So too w/false advertising. Assumptions skipped over in TM/false advertising analysis.] Protecting brand investment and consumers? That’s where disclosure rules need the most attention: definition and relation to what courts are going to do with the registration. Death closes things off. TESS is a mess.

Registration 52

Registration False Advertising Advertising Advertising 52

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 59

False Advertising Advertising Advertising Marketing 59

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). Enigma’s allegations, including definitions of “threat” from statutes and other authorities, still had a subjective component.

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

AUGUST 1, 2022

ICC develops model building codes and standards; it sued a competitor, UpCodes, for false advertising (Lanham Act, NY GBL, and common law unfair competition). A plaintiff cannot state a false advertising claim based on such a statement because, by definition, it cannot be proven false. UpCodes Inc.,

False Advertising 59

False Advertising Law Advertising Advertising 59

43(B)log

JUNE 20, 2023

I teach that false advertising is probabilistic: if a representation is likely to deceive a substantial number of reasonable consumers, it is deceptive, even if not everyone is misled—but that conclusion is most reliable for competitor-plaintiffs, as this case shows. Anyway, the front label here was ambiguous, not misleading.

False Advertising 59

False Advertising Marketing Marketing Advertising 59

Technology & Marketing Law Blog

JANUARY 8, 2024

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.” Bye, Goff * Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v. However, that issue has already been sent to the jury.

Trademark 81

Trademark Advertising Advertising False Advertising 81

43(B)log

FEBRUARY 28, 2022

2019), held — based on dictionary definitions — that the word “diet” when used “in a soft drink’s brand name is understood as a relative claim about the calorie content of that soft drink compared to the same brand’s ‘regular’ (full-caloric) option” and not a promise of weight management. Dr Pepper/Seven Up, Inc.,

Marketing 59

Marketing Marketing Law Branding 59

43(B)log

FEBRUARY 16, 2024

Static Controls in 2012, a Lanham Act false advertising case, the Court gave us two more principles for interpreting section 43: a statutory cause of action extends only to plaintiffs whose interests “fall within the zone of interests protected by the law invoked.” If you just saw it, would you think that’s their brand?

Trademark 59

Trademark Fair Use Registration False Advertising 59

LexBlog IP

SEPTEMBER 14, 2022

.” That same environmental information—encompassing the “E” in trending ESG—is of value to consumers who seek out and, at times, pay a premium for “green” branded products. “little FTC Act” for being modeled after the FTC Act), as well as a count for unjust enrichment.

Marketing 52

Marketing Marketing Advertising Advertising 52

43(B)log

APRIL 17, 2023

Quincy sued BRYK “under multiple legal theories for making unauthorized sales of products branded with Quincy’s PREVAGEN trademark.” 13, 2023) I don’t usually blog default cases because there’s usually little legal analysis; this case is an exception around the fraught area of first sale, showing unusual diligence by the court.

False Advertising 45

False Advertising Advertising Advertising Trademark 45

43(B)log

APRIL 27, 2022

As plaintiffs pointed out, the relevant context includes the Nestlé brand name and the placement of the product next to chocolate chips in grocery store baking aisles. Similarly, images of a cookie and white morsels do not provide any information as to the substance of the morsels.”

Branding 45

Branding Brands Branding Business 45

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

43(B)log

SEPTEMBER 17, 2021

However, fake negative reviews of RingCentral were definitely “of and concerning” RingCentral, so the defamation and trade libel claims based on them could continue. Trade libel: Trade libel is the intentional disparagement of another’s property that results in pecuniary damage.

Business 56

Business Marketing Marketing Branding 56

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

SEPTEMBER 7, 2021

Wakefern operates approximately 353 supermarkets under various brands such as ShopRite and Fairway Market across several states, and has a registration for ShopRite. False advertising: Not commercial advertising or promotion. Trademark infringement: This just wasn’t use in commerce.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

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

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. For false advertising, the control group respondents were exposed to the same four MiTek stimuli but with the reference numbers removed. Simpson Strong-Tie Co. 2023 WL 137478, No. 20-cv-06957-VKD (N.D.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

JUNE 27, 2023

or “A Taste of Mexico!”; (b) a Mexican flag on the front and center of the packaging; and (c) the brand name “La Banderita” (or “the flag”), a reference to the Mexican flag displayed prominently on the Products. All the accused products allegedly use: (a) the phrase “El Sabor de Mexico!” La Banderita Whole Wheat Fajita Similar.

Marketing 100

Marketing Marketing Advertising Advertising 100

SpicyIP

DECEMBER 30, 2023

Eventually, Johnson and Johnson announced that it would no longer enforce their patents for Bedaquiline (brand name: Sirturo) which is used in the treatment of multidrug-resistant tuberculosis (MDR-TB) in 134 low- and middle-income countries. The rejection order is authored by Dr. Latika Dawara, Asst. d) Other IP Developments 1.

IP 124

IP Copyright Trademark Intellectual Property 124

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. Court can’t seem to figure out how to handle that duality between pure information and brand value.

False Advertising 75

False Advertising Advertising Advertising Trademark 75

43(B)log

FEBRUARY 3, 2023

They don’t use it often but they definitely have it, and more courts are following the Belmora approach of saying 43(a) gives them that authority.] (3) Lemley: is/should there be contributory false advertising liability? We don’t need to reform advertising law; we need to reform agency law. 3) Functionality.

False Advertising 45

False Advertising Trademark Advertising Advertising 45

43(B)log

FEBRUARY 3, 2024

A: definitely could be a factor. They’ve changed the design, but still claim authenticity: the authenticity is the brand. Herman Miller brings claims of unfair competition, false association, false advertising, right of publicity, TM rights including dilution, claiming designer’s name, model names, and shape of the design.

Designs 59

Designs Design Law Design Patent 59

43(B)log

JULY 20, 2023

“While one who provides services in exchange for a payment relies only on the payment guarantee, a purchaser of a car may choose to rely on any of a number of marketing and branding representations.” (I Or we can provide notice by using the common law definition of fraudulent misrepresentation, where the common law provides the notice.

Advertising 52

Advertising Advertising Law False Advertising 52

43(B)log

OCTOBER 4, 2021

Another way to put it is that aesthetic functionality requires you to have an understanding of the definition of the market in which other clothing makers should be free to compete. This a Tom Sachs painting from his recent series of brand paintings. American Girl Brands, LLC, 2021 WL 510729, No. Is this explicitly misleading?

IP 94

IP Trademark Advertising Advertising 94

43(B)log

FEBRUARY 19, 2022

Businesses harm consumers only in a few ways—false advertising, monopoly prices, defective products. Role definitions can render certain interpretations “irrational.” A: yes, you could definitely find problems there—restrictive terms, deplatforming, refusal to deal on nondiscriminatory basis.

Law 119

Law Branding Brands Branding 119