43(B)log

NOVEMBER 27, 2023

Design Gaps had in the past conducted projects for Peters Custom Homes including the design and construction of residential cabinetry in homes referred to as “Quail Hollow North” and “Lake Wylie.” And the complaint was full of references to Design Gaps’ copyrighted designs and defendants’ “copying.”

Copying 45

Copying False Advertising Designs Design 45

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 Design 59

Technology & Marketing Law Blog

JUNE 8, 2024

Among other limits, the court refuses to enjoin the defendants’ keyword ad buys, though the restriction applies to trademark references in the ad copy: District courts in the Fifth Circuit have held that “in and of itself—using a competitor’s trademark as a Google AdWords or keyword does not constitute trademark infringement.”

Trademark 129

Trademark Advertising Advertising False Advertising 129

Technology & Marketing Law Blog

AUGUST 30, 2023

The consumer operating with a higher degree of purchaser care would likely understand that clicking on the Colibri’s ad would bring them to Colibri’s website, which contains no reference to the Plaintiff or its services.” Bye, Goff * Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v. LoanStreet v.

Advertising 98

Advertising Advertising False Advertising Trademark 98

43(B)log

OCTOBER 1, 2021

Kissler counterclaimed that these emails were commercial speech that violated the Lanham Act’s prohibition on false advertising and caused Kissler to suffer irreparable harm, including loss of business opportunities and harm to its reputation. Sending the complaint to twelve customers wasn’t “commercial advertising or promotion.”

Advertising 59

Advertising Advertising False Advertising Litigation 59

43(B)log

JUNE 22, 2022

Plaintiffs sued for breach of contract under Tennessee common law and false advertising in violation of the Lanham Act. (OK, OK, I’m not a big false endorsement fan, but … isn’t this false endorsement? Plaintiffs terminated an agreement to insure Securranty Inc.’s Insert your own insurance-related pun.)

Advertising 72

Advertising Advertising False Advertising Contracts 72

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

AUGUST 26, 2022

PennEngineering claims a PEM family of marks and sued Peninsula for trademark infringement, counterfeiting, false advertising, and unfair competition. The court denied Peninsula’s motion for summary judgment except for pure keyword buys, counterfeiting (based on resales of PEM goods), and claims based on marks Peninsula didn’t use.

False Advertising 59

False Advertising Advertising Advertising Trademark 59

43(B)log

JULY 20, 2022

The copy of the brochure deposited with the copyright office is 50 pages long and consists primarily of photographs depicting products and product features purportedly available from ‘ColorCopper.com.’” There’s a similar copyright registration for this site. 1” therein. Note effects on the scope of their rights against descriptive uses.]

False Advertising 72

False Advertising Ownership Registration Design 72

43(B)log

DECEMBER 1, 2022

OSD Audio then sued Outlaw under §512(f), and Outlaw counterclaimed for false advertising and unfair competition under the Lanham Act, copyright infringement, and trade libel. Lanham Act: The user manual did not constitute “commercial advertising or promotion.” Thus, Outlaw showed likely success on the merits of this claim.

Advertising 49

Advertising Advertising False Advertising Copyright 49

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).

Advertising 98

Advertising Advertising Trademark False Advertising 98

43(B)log

DECEMBER 23, 2022

Although expressing some skepticism, the court found that they stated a valid false advertising claim. But buying a limited-time license to stream a digital copy of Yesterday was neither a tangible good nor a service under the CLRA. They allegedly watched the movie because they wanted to see De Armas and the scene in the movie.

False Advertising 72

False Advertising Advertising Advertising Social Media 72

43(B)log

JULY 25, 2024

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.” This wasn’t literally false, because Videa had just obtained FDA clearance for thirty plus indications. Overjet, Inc. VideaHealth, Inc.,

Copyright 59

Copyright False Advertising Advertising Advertising 59

43(B)log

AUGUST 26, 2021

5, 2021) The plaintiff benefits from very generous treatment of its false designation and copyright claims, in the process stripping false designation of anything other than a prohibition on copying/vitiating both Wal-Mart and Dastar. Simpson sells structural connectors for use in building construction.

Design 64

Design Designs Copying Copyright Infringement 64

Technology & Marketing Law Blog

JUNE 23, 2024

After remand, the case went back to the Ninth Circuit, which held that anti-threat classifications might be Lanham Act false advertising. Consider an analogy: book publishers routinely give away free promotional copies of books to reviewers and others. Today I’m blogging the district court decision after that remand.

Law 59

Law False Advertising Advertising Advertising 59

Technology & Marketing Law Blog

SEPTEMBER 28, 2021

The manufacturer can sue the seller for copying its shots; the manufacturer can sue for false advertising if non-official shots aren’t “accurate,” and freelancers love to sue over product shots they took and ones they think are too similar to the ones they took.]. Repudiation of the 512 Deal.

Trademark 144

Trademark False Advertising Advertising Advertising 144

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

43(B)log

OCTOBER 11, 2022

It was also entitled to a permanent injunction against application of parts of the law that copied the FDCA to its existing labels. The provision at issue bars “[u]tilizing a term that is the same as or similar to a term that has been used or defined historically in reference to a specific agricultural product.”

Law 56

Law False Advertising Design Designs 56

Technology & Marketing Law Blog

JUNE 29, 2022

The court says the fact that Slocum didn’t display its trademark in the ad copy might be a problem: a potential client using the Bart mark to search for Bart will obtain a result that does not clearly indicate that it belongs to the Slocumb Firm and not to Bart. –Adler v. Reyes & Adler v.

Trademark 111

Trademark Advertising Advertising Blogging 111

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

MARCH 4, 2024

29, 2024) Previously, after a bench trial, the court found Albion liable for falsely advertising its caulk dispensing guns as “Made in the USA.” After more evidence, the court found that Albion adequately supported its unclean-hands defense—that Newborn had also made false USA origin claims—until early 2007. Newborn Bros.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

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. incorporation of documents into the complaint by reference, both often significant in false advertising cases.

Brands 45

Brands Branding Branding False 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. In a nutshell, their outcome often remains uncertain [e.g. here and here ].

Copyright Infringement 52

Copyright Infringement False Advertising Brands Branding 52

43(B)log

MAY 2, 2023

21, 2023) ExeGi sued Brookfield for state and federal false advertising/tortious interference. Although there don’t seem to have been surveys on this, “[m]ost of the public and some clinicians incorrectly refer to genus and species as ‘strains.’” ExeGi Pharma, LLC v. Brookfield Pharmaceuticals, LLC, F.Supp.3d 20-CV-192-JPS (E.D.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

DECEMBER 1, 2022

Viacom also engaged a market research company to learn more about “southern beach culture,” which suggested that the term Flora-bama was “either unknown or though [sic] to refer strictly to the bar.” Deliberate copying was irrelevant. There was no requirement that the use be “necessary” to the art. Nor was referential use required.

Artistic Work 64

Artistic Work Television Trademark Trademark Law 64

43(B)log

AUGUST 3, 2023

So too w/false advertising. Assumptions skipped over in TM/false advertising analysis.] Relevant consumer: perceptions can determine commercial strength but the inputs are often the same as for conceptual strength—dictionaries w/lower-case references. Death closes things off. Should be descriptive.

Registration 52

Registration False Advertising Advertising Advertising 52

SpicyIP

DECEMBER 30, 2023

The Division Bench judgement was passed on October 13, in response to the reference made by a Single Judge Bench where the Court disagreed with the finding of the coordinate bench in Boehringer Ingelheim v. The judgement was passed by a Single Judge Bench of Justice Manish Pitale. Indian Performing Right Society Ltd. HULM Entertainment v.

IP 124

IP Copyright Trademark Intellectual Property 124

43(B)log

JULY 20, 2023

Because the websites do more than simply sell vitamins and supplements – they are “interconnected with the exposition of ideas about how to live a healthy life” – he argued that references to the websites in the publications didn’t make them ads, and that his content was “infused with political speech. E.g.: So here’s what I want you to do.

Government 40

Government Advertising Advertising Social Media 40

SpicyIP

OCTOBER 27, 2023

Nagging refers to persistent, repetitive, and constant requests for action, such as the ‘sign-up’ or ‘subscribe now’ box repeatedly opening on an unrelated webpage during various access steps. Example: ‘No thanks, I hate saving money’ 5. This violates copyright laws and may lead to legal actions for copyright infringement.

Intellectual Property 52

Intellectual Property Design Designs False Advertising 52

LexBlog IP

FEBRUARY 1, 2023

at 997-98, Rogers limited the application of the Lanham Act’s prohibition on false advertising “to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. ” Id. In VIP Products v. Jack Daniels Products , 953 F.3d 3d 1170 , 1172 (9 th Cir.

Trademark 52

Trademark Intellectual Property Brands Branding 52

43(B)log

AUGUST 3, 2023

Are the outputs copies of the training data? Copying takes place prior to training; converted into tokens and training is a process of adjusting weights in the model, not copying tokens. 57% say sellers could be liable for false etc. claims, but only 24% reference or explain specific rules.

Social Media 40

Social Media Fair Use Advertising Advertising 40

43(B)log

OCTOBER 28, 2024

It didn’t get a chance to decide the false advertising claims, which I think reflects courts’ relatively lax approach to TM compared to the rigors to which false advertising claims are subjected before reaching a jury; personally, I likely would have gone the other way. They were directly competing.

False Advertising 59

False Advertising Advertising Advertising Design 59

43(B)log

AUGUST 9, 2021

As alleged in the initial complaint, Charter mailed solicitations whose envelopes “used Windstream’s trademark and copied the same distinct color pattern from Windstream’s current advertising campaign.” Does its awareness of the stay mean that its false advertising violates the automatic stay? In re Alert Hldgs.,

False Advertising 119

False Advertising Advertising Advertising Law 119

43(B)log

DECEMBER 18, 2024

After the first Oracle lawsuit in 2010, the court found that Rimini infringed Oracles copyrights by engaging in cross-use and creating copies of Oracles materials on Riminis computer systems. Thus, based upon requires copying of the kind exhibited in translations, movie adaptations, and reproductions. The text starts with examples.

Derivative Work 98

Derivative Work Copying Ownership Licensing 98

43(B)log

JANUARY 10, 2025

GWA alleged that Grace copied GWAs patented combustion promoter technology and mounted a marketing campaign denigrating GWAs products to customers. Questions of who prepared the underlying data, what caused the errors, and whether a defendant knew the statements were false at the time, are of no moment to the question of falsity.

False Advertising 52

False Advertising Advertising Advertising Journalism 52

43(B)log

FEBRUARY 3, 2024

Also no reference to cannabis, THC, or CBD. You can copy a Rembrandt and do a beautiful job but it’s not a Rembrandt.” 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.

Design 59

Design Designs Law Design Patent 59