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. Nor did he specifically analyze KIND ingredients, only how they were “typically” sourced.

False Advertising 64

False Advertising Brands Branding Branding 64

43(B)log

JULY 15, 2024

Nike claims that, despite those efforts, StockX sold a number of Nike-branded shoes that were counterfeits. As for the positivity of the ads, “consumer surveys in false advertising cases commonly display the challenged advertisement.” Surely a highly negative control is not a very plausible ad.)

False Advertising 69

False Advertising Branding Branding Brands 69

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

AUGUST 9, 2024

Mary Catherine Amerine, Reasonably Careless Consumers in False Advertising and Trademark Consumers can devote much more (or less) time to a decision than seems rational for the amount of risk/benefit in their lives. Court expects consumers to be reasonably prudent in both TM and false advertising. But, surprise!

Trademark 59

Trademark False Advertising Advertising Advertising 59

Copyright Lately

SEPTEMBER 29, 2024

Atari’s copyright infringement lawsuit against State Farm advances, underscoring the importance of careful clearance in advertising. It looks like Jake from State Farm is definitely going to blow through his deductible, as the insurance giant lost its bid to declare game over on a lawsuit brought by video game publisher Atari Interactive.

Fair Use 109

Fair Use Copyright Artwork Social Media 109

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

SEPTEMBER 13, 2024

ITW advertises “the interchange between its products and the matching OEM manufacturer products” in its materials, sometimes including OEM interchanges for specific automotive brands in its package advertising. It also marketed certain products as epoxies despite their not fitting the chemical definition of an epoxy.

Advertising 59

Advertising Advertising False Advertising Marketing 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

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 98

Trademark Advertising Advertising False Advertising 98

Technology & Marketing Law Blog

OCTOBER 9, 2024

” This definition is typically terrible. ” This definition is typically terrible. Bye, Goff * Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v. Allied Modular * Griper’s Keyword Ads May Constitute False Advertising (Huh?)–LoanStreet This is a very unfortunate development IMO.

Advertising 98

Advertising Advertising Trademark False Advertising 98

43(B)log

AUGUST 27, 2024

The control group was shown a “workup” of what a “Plaid branding only” user interface would look like. PNC’s marketing expert opined that Plaid benefited from the usage of PNC’s marks and that Plaid’s usage of PNC’s marks harmed PNC’s brand. There were limited interactive elements on the screens.

Branding 52

Branding Branding Brands False Advertising 52

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 45

False Advertising Advertising Advertising Reporting 45

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

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 45

Trademark False Advertising Fair Use Branding 45

43(B)log

JUNE 10, 2024

The challenged language includes “to help manage blood sugar,” “#1 doctor recommended brand,” and “scientifically designed for people with diabetes.” This is not the sort of ambiguity that can be definitively resolved by reference to a back label.”

Designs 59

Designs Design Branding Branding 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 45

False Advertising Law Advertising Advertising 45

43(B)log

MARCH 8, 2024

The products at issue are uniformly branded with the phrase “C + Collagen.” Gross Skincare allegedly knows that consumers will pay more for skincare products that contain collagen and intends for consumers to infer from the “Collagen” branding that the products do so.

Branding 59

Branding Branding Brands Advertising 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 Branding Brands False Advertising 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 45

Trademark False Advertising Advertising Advertising 45

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 Brands 59

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 Brands 59

43(B)log

FEBRUARY 14, 2025

False advertising: potential laches problems, though defendants didnt show prejudice (shouldnt the burden be on LLT to plead around it where laches is pled on the face of the complaint?). Thats one reason why we should police the definition of commercial advertising or promotion and not treat scientific articles as such in most cases.]

Advertising 52

Advertising Advertising False Advertising Litigation 52

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

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 45

False Advertising Marketing Marketing Advertising 45

43(B)log

AUGUST 28, 2024

Premier sold Joint Juice for treating/preventing joint pain; a jury found it liable to a consumer class for false advertising under NY law; and the district court awarded statutory damages to the class, but cut them by over 90%. New York uses “an objective definition of deceptive acts and practices.”

Law 59

Law Advertising Advertising False Advertising 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

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

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

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 Branding Brands 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.”

Brands 45

Brands Branding Branding Business 45

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 Registration 56

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

Technology & Marketing Law Blog

OCTOBER 23, 2024

It has spent $100M on advertising. Brown Engstrand is a start-up rival law firm (operating under the brand “Accident Law Group”). These states have created a mutant species of IP law disconnected from both trademark law or false advertising law; and this mutant IP comes from an unelected group, not a legislature.

Trademark 105

Trademark Advertising Advertising False Advertising 105

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

43(B)log

SEPTEMBER 20, 2024

18, 2024) Scotts makes consumer lawn, garden, pesticide, and insecticide products, including under the “ORTHO” brand. Ortho black trade dress This was sufficiently definite; it didn’t include terms like “such as” or “for example,” which can be problematic. At least the court is equally lenient with TM and false advertising?

False Advertising 52

False Advertising Copyright Advertising Advertising 52

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

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