43(B)log

MARCH 21, 2022

Bimbo sells Grandma Sycamore’s Home-Maid Bread; it sued defendants, who include the baker who developed the Grandma Sycamore’s recipe, for trade secret misappropriation, trade dress infringement, and false advertising when it sold a comparable bread product, Grandma Emilie’s, with the tagline “Fresh.

False Advertising 72

False Advertising Advertising Advertising Designs 72

43(B)log

MAY 19, 2023

Roblox sued for copyright infringement, false advertising, trademark infringement, false association and false designation of origin, trade dress infringement, intentional interference with contractual relations, breach of contract, and false advertising and unfair competition under California law.

Copying 94

Copying False Advertising Social Media Advertising 94

43(B)log

AUGUST 25, 2021

Plaintiff alleges that subscribers “universally understand[ ] that a product designated ‘O’ is an [over-the-counter (“OTC”) ] drug, available over-the-counter and without physician supervision.” Although Alfasigma’s products were historically designated as F, First Databank reclassified them as O.

False Advertising 72

False Advertising Advertising Advertising Designs 72

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

SEPTEMBER 5, 2023

11, 2023) The parties compete in the design of buckling-restrained braces, which are structural devices that help buildings withstand seismic activity. The Design Manual also included several technical drawings of BRBs, which allegedly infringed plaintiff Core-Brace’s registered drawings. SME Steel Contractors, Inc.

False Advertising 59

False Advertising Law Advertising Advertising 59

43(B)log

SEPTEMBER 7, 2021

Perhaps overreacting, Wakefern sued for trademark infringement and false advertising in violation of the Lanham Act and violation of state unfair competition law, which is coextensive and thus disappears from our story. False advertising: Not commercial advertising or promotion.

False Advertising 45

False Advertising Advertising Advertising Marketing 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. Each product name has a “part name” (a letter or combination of letters designating the product line) and a “model number” (additional numbers and letters that distinguish parts with different attributes).

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

MARCH 27, 2023

24, 2023) Courts in particular kinds of false advertising cases say that scientific claims are not falsifiable, even as the majority of workaday false advertising claims involving scientific fact are (correctly) treated as falsifiable. American Soc’y of Anesthesiologists, Inc., 4th -, 2023 WL 2621131, No. 22-1411 (3d Cir.

Journalism 111

Journalism False Advertising Advertising Advertising 111

43(B)log

MARCH 20, 2023

WatsonSeal Marketing sued for false advertising under the Lanham Act, tortious interference with business relations under Alabama law, and unjust enrichment under Alabama law, but, having kicked out the Lanham Act claims, the court didn’t proceed any further with the state claims.

False Advertising 60

False Advertising Advertising Advertising Marketing 60

43(B)log

JULY 15, 2024

As for the positivity of the ads, “consumer surveys in false advertising cases commonly display the challenged advertisement.” Also, the fact that he acknowledged that there were other definitions of “sneakerhead” and that the group is heterogeneous wasn’t a “fatal” flaw meriting exclusion as opposed to cross-examination.

False Advertising 69

False Advertising Brands Branding Branding 69

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). The district court dismissed the complaint on the grounds that these designations were “non-actionable statements of opinion.”

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

JULY 20, 2022

CC has a recent trademark registration for a design mark “consist[ing] of the stylized wording ‘COLOR COPPER.COM”, [with] a diamond shape between the wording ‘COLOR’ and ‘COPPER’ made up of four smaller diamonds, each diamond having a pattern inside of it,” COPPER.COM disclaimed. There’s no written agreement” will do it.]

False Advertising 72

False Advertising Ownership Registration Designs 72

43(B)log

JUNE 11, 2024

The court reasoned that, although the words at issue—“malicious” and “threat”—were not themselves advertisements, “Enigma has alleged facts permitting an inference in its favor that Malwarebytes makes the speech in an advertising context.” The court disagreed. The disclosures weren’t dispositive at the motion to dismiss stage.

Advertising 64

Advertising Advertising Designs Design 64

43(B)log

OCTOBER 11, 2022

Further, Tofurky argued that it couldn’t “accurately and effectively describe its products without comparison to the conventional meat products with flavor profiles Tofurky’s products are designed to invoke.” Considering the label as a whole, the court found Tofurky’s use of the terms not inherently misleading. Thus, Central Hudson applied.

Law 56

Law False Advertising Designs Design 56

43(B)log

JUNE 10, 2024

5, 2024) Abbott Laboratories’s Glucerna line of powders and shakes are marketed as scientifically designed for people with diabetes to help manage blood sugar. The challenged language includes “to help manage blood sugar,” “#1 doctor recommended brand,” and “scientifically designed for people with diabetes.” 3d -, 2024 WL 2843092, No.

Designs 59

Designs Design Brands Branding 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 102

Fair Use Copyright Artwork Social Media 102

43(B)log

DECEMBER 23, 2022

Although expressing some skepticism, the court found that they stated a valid false advertising claim. Thus, Universal argued that the alleged misrepresentation was too vague and non-specific to definitely represent that viewers would see De Armas or her segment in the movie. But explicit misstatements aren’t required.

False Advertising 72

False Advertising Advertising Advertising Social Media 72

43(B)log

JANUARY 10, 2023

6, 2023) Norman sued Gerber for allegedly falsely advertising its baby food/infant formula products as “NON GMO Not Made With Genetically Engineered Ingredients” on the front of the package, and also on the back above the ingredients list. Gerber Prods. 2023 WL 122910, No. 21-cv-09940-JSW (N.D.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

MAY 12, 2022

They are: the Unfair Competition Law (UCL); the False Advertising Law (FAL); and the Consumer Legal Remedies Act (CLRA). While they often cover the same conduct in false advertising cases and are cumulative of each other, they have differences. UCL: The UCL, California Business and Professions Code § 17200 et seq.,

False Advertising 59

False Advertising Advertising Advertising Business 59

Technology & Marketing Law Blog

SEPTEMBER 28, 2021

It claims to focus on “counterfeits” that could harm consumer “health and safety,” but those are both lies designed to make the bill seem narrower and more balanced than it actually is. If the latter, then the definition will pick up smallish online retailers that have small marketplace components.

Trademark 142

Trademark False Advertising Advertising Advertising 142

43(B)log

JUNE 16, 2022

It contracts with Charities Aid Foundation of America, which in turn delivers donated funds to designated charities. For certain “celebrity experiences,” 60% of the money donated goes to CAFA to be paid to the designated charity, but for Omaze-owned campaigns, Omaze keeps 85%. Omaze now buys its own swag for contests.

False Advertising 59

False Advertising Advertising Advertising Design 59

43(B)log

AUGUST 3, 2023

So too w/false advertising. Assumptions skipped over in TM/false advertising analysis.] That’s where disclosure rules need the most attention: definition and relation to what courts are going to do with the registration. It’s market definition. The definition expanded far beyond packaging/display.

Registration 52

Registration False Advertising Advertising Advertising 52

43(B)log

AUGUST 27, 2024

And it calls into question the broad definition of "affiliation" confusion that courts have adopted--often by assuming that "affiliation" in the Lanham Act means whatever consumers think it means in response to survey questions, although it could reasonably be read more strongly or consumers could be educated/asked for their definitions thereof.

Brands 52

Brands Branding Branding False Advertising 52

43(B)log

FEBRUARY 6, 2023

The allegedly fraudulent reviews qualified as deceptive acts under the relevant UDAP laws, as did falsely advertising rental listings as “verified,” “authentic,” and “available.” Misrepresentations that are false because they are not real—they were made up and paid for—can never by definition be “puffery.”

False Advertising 72

False Advertising Confidentiality Advertising Advertising 72

43(B)log

SEPTEMBER 20, 2022

The earlier definition used in the case was heavily dependent on now-abandoned “Non GMO” claims. Without the GMO context, the court found that there was no objective definition of “all natural.” Note: That’s not logically true: each could be a reasonable consumer’s definition, but reasonable consumers could be all over the map.

Litigation 59

Litigation Contracts False Advertising Reporting 59

43(B)log

FEBRUARY 1, 2024

He didn’t need to design the algorithm before certification; ascertainability is a “modest threshold requirement [that] will only preclude certification if a proposed class definition is indeterminate in some fundamental way.”

Designs 59

Designs Design False Advertising Advertising 59

43(B)log

MARCH 2, 2022

She also alleged that USDA and FDA definitions of “free-range” are more akin to those views. Its website is “nelliesfreerange.com,” and the phrase “free-range” was stated throughout separately from the “Certified Humane” designation. She alleged reliance and a price premium. Defendants argued that the statement was merely puffery.

Designs 83

Designs Design Marketing Marketing 83

LexBlog IP

SEPTEMBER 14, 2022

In isolation, stating a company or product is “green,” “sustainable,” or otherwise “eco-friendly” may seem like innocuous marketing provided there is no regulated definition of these terms. “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

SEPTEMBER 23, 2022

The court thought that the lack of actual recycling was “extrinsic” to the product—not the product’s fault (despite false advertising’s strict liability)—while the lack of RIC designations was “intrinsic.” There’s also a label on the back of the package: “CHECK YOUR LOCAL MUNICIPALITY FOR RECYCLING GUIDELINES.”

Advertising 59

Advertising Advertising Designs Design 59

43(B)log

MAY 2, 2023

21, 2023) ExeGi sued Brookfield for state and federal false advertising/tortious interference. Its label doesn’t list the exact quantity of each bacteria species or strain designation, noting instead that its blend of bacteria is proprietary. 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

SpicyIP

DECEMBER 30, 2023

The Court noted that the Patents Act is specifically designed to deal with matters concerning allegations of unreasonable conditions in licence agreements, abuse of one’s status as a patentee, the necessary inquiry into these allegations, and eventually the relief that can be granted. Controller of Patents & Designs Patent Office Mumbai.

IP 120

IP Copyright Trademark Intellectual Property 120

43(B)log

JULY 6, 2022

Moreover, even if some buyers knew that JUUL had nicotine and others didn’t, that didn’t affect the materiality of the claims that plaintiffs alleged defendants made: “that JUUL products were portrayed as healthy but engineered and designed to make them more addictive and that use of those products created health hazards.”

Social Media 59

Social Media Marketing Marketing Advertising 59

43(B)log

JUNE 27, 2023

She does not expect advertisers to lie to her, nor should any consumer be expected to endure affirmative misrepresentations or strongly misleading claims. But she understands nuance and context, and that when making her purchasing decisions, all representations made by a seller are designed to sell.

Marketing 100

Marketing Marketing Advertising Advertising 100

43(B)log

FEBRUARY 24, 2024

Other examples: design patent, as Sarah Burstein has writte n. We know that automated systems designed to flag infringements get lots of false positives b/c they can’t recognize fair use; may also be false negatives, though that’s not the focus. McGeveran: that’s definitely Wal-Mart. NYU Press, 2016).

Fair Use 45

Fair Use Brands Branding Branding 45

43(B)log

SEPTEMBER 1, 2021

In fact, the name “Shelby” comes from Carroll Shelby, a race car driver and designer for Ford in the mid-20th century. This “Limp Mode” was an intentional design choice; the coolers were removed from those two packages before launch, allegedly to increase profit margins in their volume-leading Technology package.

Advertising 45

Advertising Advertising Technology Reporting 45

Technology & Marketing Law Blog

OCTOBER 23, 2024

” Furthermore, in a mild surprise, the court blesses Google’s “ad” label: “the bolded “Ad” designation next to each of ALG’s advertisements sufficiently distinguishes ALG’s advertisements from the search’s organic results.” LoanStreet v. Reyes & Adler v.

Trademark 93

Trademark Advertising Advertising False Advertising 93

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.” Kagan describes it as “designation of source.” of Ala, LV v.

Trademark 59

Trademark Fair Use Registration False Advertising 59