43(B)log

AUGUST 7, 2023

3, 2023) Potentially interesting pretrial rulings in this false advertising/TM case: Goli’s motion to exclude the testimony of Dr. Jerry Wind was granted in part to preclude him from opining on the ultimate question of likely confusion or balancing the trademark infringement factors, which was for the jury. GOLO, LLC v. 20-667-RGA (D.

False Advertising 70

False Advertising Advertising Advertising Law 70

Technology & Marketing Law Blog

JULY 22, 2021

In characterizing Section 230, every reference to “immunize” is changed to “‘protect.” The prior opinion contained two references to Section 230 as “broad.” Courts have rejected Section 230 defenses against claims for false advertising, deceptive trade practices, and tortious interference.

False Advertising 141

False Advertising Contracts Editing Advertising 141

43(B)log

APRIL 15, 2024

The court denies a preliminary injunction on the trademark claims based on lack of likely success on the merits, but declines to dismiss either infringement or false advertising claims. Indeed, the evidence shows that, in ordinary parlance, the term “good meat” is used routinely to refer to the concept of sustainably sourced meat.

False Advertising 64

False Advertising Advertising Advertising Marketing 64

43(B)log

MARCH 14, 2024

11, 2024) I have a long-running interest in Rule 68 offers of judgment, and this case involves an interaction with false advertising law! We are fiercely protective of the Crocs brand and our iconic DNA. Crocs, Inc., 2024 WL 1051951No. 23-cv-01790-PAB-KAS (D. The parties compete in the shoe market.

False Advertising 59

False Advertising Advertising Advertising Brands 59

43(B)log

MARCH 18, 2022

Fresh Bourbon allegedly falsely advertises that Fresh Bourbon is the “first black-owned bourbon distillery in Kentucky,” and makes other related false claims, which is allegedly false because it’s not a distillery, which requires both federal (TTB) and Kentucky (KABC) licenses.

False Advertising 69

False Advertising Advertising Advertising Marketing 69

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 Brands Branding Branding 69

43(B)log

MARCH 29, 2024

The asterisk following “dermatitis” referred to this statement: “*the most common allergy in infancy. Plaintiffs alleged that these ads were false and misleading because there was no scientific evidence supporting the claim that GSG reduced the risk of developing certain allergies or atopic dermatitis.

False Advertising 104

False Advertising Advertising Advertising Reporting 104

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 Brands Branding False Advertising 45

IP and Legal Filings

MAY 13, 2023

Using the name or image of a celebrity for brand advertisement or promotion in the US does not always attract liability, provided the brand is not falsely misleading the public that the celebrity endorses the product. Spelling-Goldberg Prods., In Gautam Gambhir v. D.A.P & Co. &

Personality Rights 105

Personality Rights Privacy Trademark Law False Advertising 105

43(B)log

MARCH 31, 2023

27, 2023) Eshelby sued L’Oréal over its use of “Paris” (including as part of the brand name “L’Oréal Paris”) and French-language text in ads and on the front of packages when the products aren’t made in France. L’Oréal USA, Inc., 2023 WL 2647958, 22 Civ. 1396 (AT) (S.D.N.Y.

Brands 104

Brands Branding Branding False Advertising 104

43(B)log

SEPTEMBER 30, 2021

However, the false advertising claims failed because they didn’t identify material differences in the products. There were no allegations that defendants’ marketing materials referred to Strong Current in any way.

False Advertising 56

False Advertising Advertising Advertising Marketing 56

Technology & Marketing Law Blog

SEPTEMBER 18, 2023

This case involves Jim Adler, a/k/a the “Texas Hammer,” a Texas lawyer who has spent $100M+ on advertising to build his brand. First, only 94 of those references were “actual leads processed by Quintessa from its competitive bidding campaign (the campaign that bids on the Adler Marks).” LoanStreet v.

Advertising 98

Advertising Advertising False Advertising Trademark 98

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. MiTek allegedly uses product names that are identical or similar to Simpson product names and also uses Simpson’s product names as “reference numbers” for MiTek’s own products. Simpson Strong-Tie Co.

False Advertising 45

False Advertising Advertising Advertising Reporting 45

43(B)log

JUNE 14, 2022

May 25, 2022) Alcon sued Lens.com for federal and state false advertising and trademark claims. The Lanham Act false advertising counterclaim was dismissed. Alcon Vision, LLC v. Lens.com, Inc., 2022 WL 1665453, No. 1:18-cv-00407-NG-RLM (E.D.N.Y.

False Advertising 72

False Advertising Trademark Advertising Advertising 72

SpicyIP

APRIL 17, 2023

Offering an alternative, she argues that instead of looking at the Amendment Bill, the judicial orders and judgements by the Indian courts should be the source of reference for the upcoming Diplomatic Conference on IP, Genetic Resources and TK.

Advertising 105

Advertising Advertising Confidentiality Trademark 105

43(B)log

AUGUST 30, 2021

22, 2021) Rodriguez alleged that Olé’s La Banderita tortillas falsely advertised Mexican origin based on a Mexican flag front and center on the packaging, the phrase “El Sabor de Mexico!” the brand name “La Banderita” (“the flag”), and the Spanish phrase “Tortillas de Maiz” on the label of the Corn tortillas.

False Advertising 59

False Advertising Advertising Advertising Brands 59

43(B)log

OCTOBER 4, 2021

While Illinois Tool sat on its hands, not only did J-B Weld’s sales grow, but it expanded its brands into more stores and launched new variants (like “Perma-Lock Green”). False advertising claims as to “Made in USA”: First, J-B Weld argued that Illinois Tool lacked standing because it didn’t advertise its own products as being “Made in USA.”

False Advertising 69

False Advertising Advertising Advertising Trademark 69

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.” This wasn’t literally false, because Videa had just obtained FDA clearance for thirty plus indications. Overjet, Inc. VideaHealth, Inc., 2024 WL 3480212, No. 24-cv-10446-ADB (D.

Copyright 59

Copyright False Advertising Advertising Advertising 59

43(B)log

APRIL 25, 2023

Purlife Brands, Inc., 21, 2023) In two opinions on the same day, the court dealt with various IP/false advertising claims brought by one litter box seller against another. Motion to dismiss denied as to trademark infringement, false designation of origin, and unfair competition claims based on the use of Smarty Pear’s hashtags.

False Advertising 45

False Advertising Advertising Advertising Social Media 45

43(B)log

FEBRUARY 24, 2023

1A and Article III standing are there, but worrisome; casualness over stare decisis does suggest courts are willing to look at things from scratch—Vintage Brands; Netchoice—everything might be up for grabs. Does “brand personality” online change what TMs are about? Does “brand personality” online change what TMs are about?

Trademark 69

Trademark False Advertising Fair Use Brands 69

43(B)log

JANUARY 13, 2023

Ancient Brands, LLC, 2023 WL 157956, No. Vital alleged that Ancient made false and/or misleading statements on its product labels and advertising materials relating to the speed of action of several of its products and the ingredient composition of one of its products. Vital Proteins LLC v. 22 C 02265 (N.D.

Advertising 102

Advertising Advertising Marketing Marketing 102

43(B)log

AUGUST 27, 2024

Plaid allegedly then presented PNC consumers who were trying to connect to fintech apps via Plaid Link with messaging screens, using allegedly confusing branding, that said, “we’re currently experiencing connectivity issues with this bank” and “PNC has made a change that prevents you from being able to link your accounts.”

Advertising 52

Advertising Advertising False Advertising Designs 52

43(B)log

FEBRUARY 14, 2025

Toyota argued that if Allen plans to argue that the Toyota Branded Parts it sells are covered by some type of Manufacturer Warranty as advertised to the consuming public, Toyota is entitled to know what warranties, if any, are offered by Allens suppliers. but without a resultant detectable difference in the product itself.

Marketing 52

Marketing Marketing False Advertising Advertising 52

43(B)log

APRIL 25, 2023

The front label contains the brand name “Topo Chico,” the word “Margarita,” and the phrase “Hard Seltzer.” The use of “Hard Seltzer” allegedly reinforced that expectation, as “the term ‘hard’ in the context of alcohol refers to distilled spirits, i.e., ‘hard liquor’ ” like tequila. Coca-Cola Co., 2023 WL 3055196, No. alcohol by volume.

Brands 59

Brands Branding Branding False Advertising 59

Technology & Marketing Law Blog

OCTOBER 9, 2024

This ruling doesn’t address the scenario where the advertiser’s ad copy references the trademark. 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 LoanStreet v.

Advertising 98

Advertising Advertising Trademark False Advertising 98

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

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). When a local government adopts an ICC code, “it often does not publish the entirety of the code; rather, it codifies the code by reference and then publishes its own amendments.”

False Advertising 45

False Advertising Law 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 Brands Branding 52

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

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 Brands Branding 59

43(B)log

JULY 15, 2022

Continued manufacture and sale of the Max Racks after the agreement expired was a traditional ex-franchisee situation; the other accused uses basically were failing to purge every reference to the Max Rack from the Core website and user manual even after the transition to the Freedom Rack. When they did try, they missed some references.

Advertising 59

Advertising Advertising Licensing False Advertising 59

43(B)log

AUGUST 17, 2021

Defendants argued that federal regulations allowed it to use “a cocktail name as a brand name or fanciful name.” They don’t ban “[t]he use of a cocktail name as a brand name or fanciful name of a malt beverage, provided that the overall label does not present a misleading impression about the identity of the product.”

Marketing 80

Marketing Marketing Brands Branding 80

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?).

Advertising 52

Advertising Advertising False Advertising Litigation 52

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%. When Premier considered running its own study, its president wrote: “if poor—don’t publish.”

Law 59

Law Advertising Advertising False Advertising 59

43(B)log

OCTOBER 6, 2021

American Girl Brands, LLC, 2021 WL 510729, No. I will note here, as I often do, that in a false advertising case these allegations would likely be treated as conclusory at best. Not to mention that “dilution” is not the same thing as false endorsement! Walkowicz v. 20-cv-374-jdp (W.D.

Law 59

Law Privacy False Advertising Social Media 59

SpicyIP

MARCH 10, 2024

The Plaintiff presented evidence of its long-standing use and registration of the ‘NOVA’ trademark, along with the distinct packaging featuring a blue background, a grazing cow, and the brand name. During the proceedings, the Court observed and penalised the Defendants for false advertising and contemptuous conduct.

Trademark 59

Trademark Registering Trademarks Registration False Advertising 59

Trademark and Copyright Law Blog

APRIL 7, 2020

Most of these trademark filings are long-abandoned, a field of virtual, sun-bleached bones that should serve as warnings to opportunistic would-be brand owners with their eyes on “trending” terms related to public crises. Another political reference, and one that seems hard to imagine functioning as a trademark.

Trademark 40

Trademark Registration Brands Branding 40