Technology & Marketing Law Blog

JULY 23, 2024

Paperback buyers can get a free PDF file by emailing me a copy of their receipt showing which edition they bought. If you are a professor, or are hoping to teach the course, and would like a free evaluation copy, please email me (egoldman@gmail.com). Preface Chapter 1: Overview Chapter 2: What is an Advertisement?

Editing 98

Editing Advertising Advertising Marketing 98

43(B)log

AUGUST 22, 2022

The First Amendment has long coexisted with no-fault false advertising laws. So, were Sony’s statements, “a brand new album from the greatest artist of all time” with “9 previously unreleased vocal tracks performed by Michael Jackson,” commercial speech? There was also no copyright preemption.

False Advertising 59

False Advertising Advertising Advertising Artistic Work 59

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 59

False Advertising Advertising Advertising Designs 59

43(B)log

JANUARY 27, 2023

26, 2022) [much other stuff skipped] The parties had a false advertising dispute that went to a jury, which found that FIGS wasn’t liable for falsely advertising the antimicrobial properties of its scrubs. FIGS’ alleged copying of SPI’s products was not relevant to false advertising.

False Advertising 59

False Advertising Advertising Advertising Publishing 59

43(B)log

JULY 23, 2024

Paperback buyers can get a free PDF file by emailing me a copy of their receipt showing which edition they bought. If you are a professor, or are hoping to teach the course, and would like a free evaluation copy, please email Eric (egoldman@gmail.com). Preface Chapter 1: Overview Chapter 2: What is an Advertisement?

Editing 52

Editing Advertising Advertising False Advertising 52

Copyright Lately

SEPTEMBER 29, 2024

In addition to copyright infringement, Atari brought claims for business disparagement, false information and advertising, unfair competition, and unjust enrichment. As a result, the court found that Atari had plausibly alleged that the copying exceeded the threshold of de minimis use and allowed the copyright claim to move forward.

Fair Use 98

Fair Use Copyright Artwork Social Media 98

43(B)log

JANUARY 27, 2023

Spiralverse removed the original paperback glue bindings from the copies it purchased, punched holes in the pages, and installed spiral bindings. Spiralverse listed its modified copies for sale on Amazon at prices of $29.99 Was this literally false? It’s desirable for making it easier to turn pages for performance etc.

Derivative Work 75

Derivative Work False Advertising Advertising Advertising 75

43(B)log

SEPTEMBER 20, 2024

18, 2024) Scotts makes consumer lawn, garden, pesticide, and insecticide products, including under the “ORTHO” brand. 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. At least the court is equally lenient with TM and false advertising?

False Advertising 52

False Advertising Copyright Advertising Advertising 52

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 30, 2021

26, 2021) The parties compete to sell novelty consumer goods; defendant allegedly copied plaintiff’s business model including its product launches, providing its affiliates with Strong Current’s “marketing methods and materials, which include, among other things, product depictions and graphics.” Strong Current Enters. Affiliati Network, Inc.

False Advertising 56

False Advertising Advertising Advertising Marketing 56

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. Could “ITALY’S #1 BRAND OF PASTA” mislead reasonable consumers?

Branding 45

Branding Branding Brands False Advertising 45

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. However, they fail to show that Monster dirtied its hands to make the false advertising claims now alleged against Defendants.” Monster Energy Co. Vital Pharmaceuticals, Inc., 2022 WL 17218077, No.

False Advertising 59

False Advertising Advertising Advertising Social Media 59

43(B)log

JULY 3, 2023

Industria, based on Colombia, produces and distributes food products under two relevant brand names: Zenú and Ranchera. They’re successful brands: approximately $300,000,000 annually in sales of Zenú products and $100,000,000 in sales of Ranchera products. This makes Colombians abroad get tricked.”

False Advertising 59

False Advertising Advertising Advertising Registration 59

The IPKat

JUNE 13, 2022

Despite the uncertainty around the long-term success of NFTs, we have certainly seen a “land grab” from brands filing trade marks, including ITV (for LOVE ISLAND), Heineken and even The Empire State Building [Katpost with details from Becky Knott here ].

Non-Fungible Tokens 140

Non-Fungible Tokens Advertising Advertising Ownership 140

Technology & Marketing Law Blog

OCTOBER 9, 2024

Whatever legal ambiguity might have existed then has been decisively resolved, at least with respect to competitive keyword ads that don’t use the trademark in the ad copy. This ruling doesn’t address the scenario where the advertiser’s ad copy references the trademark. Google (4th Circuit). Actual Confusion.

Advertising 98

Advertising Advertising Trademark False Advertising 98

Technology & Marketing Law Blog

JANUARY 8, 2024

I raised this taxonomical issue with the Network Automation case , which involved niche-y job scheduler software where a consumer who is new to the niche might not know the various brands when starting a search. the rival included ad copy telling consumers they were buying the trademark owner’s items when they weren’t.

Trademark 98

Trademark Advertising Advertising False Advertising 98

43(B)log

SEPTEMBER 7, 2021

Significantly, even intentional copying of a plaintiff’s trademark does not, standing alone, state a misrepresentation claim.” and [the] Coach” brand. Chunma USA, Inc., 2021 WL 1534988, No. 20-CV-0271 (JMF) (S.D.N.Y. The complaint also showed images showing close similarities between Coach’s trademarks and some of Chunma’s products.

False Advertising 59

False Advertising Registration Trademark Registering Trademarks 59

43(B)log

JULY 25, 2024

It also allegedly “selected the design and colors to help with brand identification; the purple, for example, complements Overjet’s purple brand color.” Copyright: Overjet’s copyright protected its source code, but there were no allegations of code copying. Instead, it alleged copying of its “coloring scheme, shades, and shape.”

Copyright 59

Copyright False Advertising Advertising Advertising 59

IP and Legal Filings

SEPTEMBER 21, 2021

For one, when a trade dress is exclusive to a particular brand, consumers may interlink its external appearance to the company and the quality of its products. Thus, the trade dress here acts as a metonym for the brand. Additionally, a brand can also license a trade dress in order to obtain monetary advantages.

Law 52

Law Branding Brands Branding 52

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). ICC also publishes “Custom Codes” that integrate these amendments into its codes; it sells physical and electronic copies of both kinds of codes. UpCodes Inc.,

False Advertising 45

False Advertising Law Advertising Advertising 45

43(B)log

AUGUST 17, 2021

Plaintiffs sued for false advertising and false endorsement under the Lanham Act, violation of their right to publicity, deceptive trade practices under New York GBL Section 349, and defamation. 2021), which considered all these claims except for false advertising. The court was guided by Electra v. 3d 233 (2d Cir.

Social Media 45

Social Media False Advertising Advertising Advertising 45

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. Its right pocket has a small star-shaped embroidery with the brand's logo.

Copyright Infringement 52

Copyright Infringement False Advertising Branding Brands 52

IIPRD

AUGUST 4, 2022

In today’s market, a distinct brand identity is critical in all company sectors. Influencers that make a lot of money from internet marketing must also defend their own brand identification. Maintain your distinct brand identity. . False advertising should be avoided when defaming a product. Trademarks.

Social Media 45

Social Media Intellectual Property Non-Fungible Tokens Music 45

IP and Legal Filings

APRIL 28, 2022

Tiffany is world renowned jewellery brand famous for selling diamond engagement rings since 19 th century. Costco contended that “Tiffany” is not just a brand name but also a recognised term for ring setting which is not infringement as they have been using it in good faith. ” The Sports Auth.,

Fair Use 52

Fair Use False Advertising Trademark Branding 52

43(B)log

MAY 22, 2023

May 19, 2023) Whereas the timeshare false advertising cases might be making law largely applicable to other timeshare cases, what’s going on in the strip club advertising cases might have somewhat broader implications. The district court concluded that plaintiffs’ false endorsement claims were foreclosed by Electra v.

False Advertising 49

False Advertising Social Media Advertising Advertising 49

LexBlog IP

NOVEMBER 17, 2021

Kaira’s brand AMUL is internationally renowned and India’s largest food brand. First, Kaira provided evidence of the goodwill that the AMUL brand and designs have acquired globally and in Canada. Kaira produces milk products. Kaira is based in India, has been in operation since 1946 and has over 3.2

False Advertising 40

False Advertising Social Media Trademark Branding 40

43(B)log

AUGUST 3, 2023

So too w/false advertising. Assumptions skipped over in TM/false advertising analysis.] Protecting brand investment and consumers? Evolving norms of communication and branding both have no punctuation/capitalization: lululemon. Death closes things off. Property law: somewhere between all and nothing.

Registration 52

Registration False Advertising Advertising Advertising 52

43(B)log

DECEMBER 1, 2022

Deliberate copying was irrelevant. In a Rogers case, intentional copying alone cannot justify an inference of copying with intent to confuse, even if that can occur in cases that don’t “implicate” the First Amendment. “[I]n Yet both artists won.” The concurrence agreed that here, there wasn’t evidence of trademark function.

Artistic Work 64

Artistic Work Television Trademark Trademark Law 64

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. HULM Entertainment v.

IP 124

IP Copyright Trademark Intellectual Property 124

Technology & Marketing Law Blog

OCTOBER 23, 2024

Brown Engstrand is a start-up rival law firm (operating under the brand “Accident Law Group”). The rival bought competitive keyword ads (the court uses the term “conquesting,” which I objected to here ) but didn’t include the third-party trademark in the ad copy. Ad Labeling. Mark Similarity.

Trademark 105

Trademark Advertising Advertising False Advertising 105

SpicyIP

OCTOBER 27, 2023

Trademark infringement through misleading use of logos or branding: Dark patterns might involve the deceptive use of logos, brand names, or trademarks to mislead users into making purchases or signing up for services they didn’t intend to. This violates copyright laws and may lead to legal actions for copyright infringement.

Intellectual Property 52

Intellectual Property Designs Design False Advertising 52

LexBlog IP

FEBRUARY 1, 2023

VIP Products, Jack Daniel’s, the maker of the popular whiskey brand, filed a lawsuit against VIP Products, a company that sells a dog toy shaped like a whiskey barrel. Jack Daniel’s argued that the toy infringed on their trademark, as the shape of the whiskey [bottle] is closely associated with their brand. ” Id.

Trademark 52

Trademark Intellectual Property Branding Brands 52

43(B)log

FEBRUARY 25, 2023

How to survey arbitrariness/TM function: Washingmachine.com in booking.com—maybe along with not sure we also need the option “neither a common name nor a brand name.” There’s a strain of marketing literature that uses scanner data: tries to measure effect of brand extension on parent brand. This isn’t wholly empirical.

Trademark 72

Trademark Marketing Marketing Advertising 72

43(B)log

FEBRUARY 3, 2023

Copying may be directly costless to the knowledge creator, but knowledge transfer is not, and who is initiating may affect what’s going on here: knowledge transfer encodes voluntariness which fits with Cicero but not with a lot of the copying to which people object today. How do they make that happen? Gender and class?

False Advertising 45

False Advertising Trademark Advertising Advertising 45

43(B)log

FEBRUARY 28, 2022

Healthvana sued in May 2020 for trademark infringement, unfair competition, and false advertising in violation of both federal and state law, as well for cybersquatting under ACPA. Telebrands’ TV ad didn’t use the word “Covid” [I bet litigation counsel is grateful for FDA compliance efforts carried out in writing the copy!].

False Advertising 64

False Advertising Marketing Marketing Branding 64

43(B)log

FEBRUARY 3, 2024

You can copy a Rembrandt and do a beautiful job but it’s not a Rembrandt.” They’ve changed the design, but still claim authenticity: the authenticity is the brand. Design w/in Reach was selling its copies as “museum quality reproductions.” Original reproductions” is the concept. Should separate the law from the marketing.

Designs 59

Designs Design Law Design Patent 59

43(B)log

FEBRUARY 19, 2022

Businesses harm consumers only in a few ways—false advertising, monopoly prices, defective products. If something isn’t protected by IP, it’s free for copying. We like copying! Confusion is what we try to avoid, not copying. The roles of business and consumer have been applied flatly and wrongly.

Law 91

Law Branding Brands Branding 91