43(B)log

JULY 6, 2022

Marketing Sales Practices & Prods. Plaintiffs moved to certify four classes of purchasers of JUUL products on “theories that defendants’ marketing of JUUL was unlawfully deceptive, JUUL was unlawfully marketed to youth, and JUUL products are not fit for ordinary use.” In Re Juul Labs, Inc., I don't even have a RICO tag!

Social Media 59

Social Media Marketing Marketing Advertising 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. Keep up with the culture by considering social media. It’s market definition.

Registration 52

Registration False Advertising Advertising Advertising 52

43(B)log

OCTOBER 19, 2023

I’ll focus, as usual, on the false advertising bits and ignore the securities law parts. Another theory of harm came from allegations that the executive defendants and some of the promoter/influencer defendants were selling off their tokens as they promoted them, engaging in market manipulation.

Due Diligence 64

Due Diligence False Advertising Social Media Advertising 64

43(B)log

FEBRUARY 24, 2024

Adjudicators need to hear about risks of overenforcement, overclaiming; defenses—he gets emails from sellers of used or grey market goods snared in a robotic search. User names on social media may or may not include trademarks; user bios give more information. McGeveran: that’s definitely Wal-Mart. It’s like with CPB.

Fair Use 45

Fair Use Branding Brands Branding 45

SpicyIP

DECEMBER 30, 2023

The Court held that “diagnostic” under Section 3(i) should neither be construed narrowly, limited to only in-vivo or definitive diagnosis, nor broadly to include any process “relating to” diagnosis. On March 13, the Delhi High Court granted an ex parte interim injunction in Markets and Markets Research Pvt.

IP 112

IP Copyright Trademark Intellectual Property 112

43(B)log

FEBRUARY 3, 2023

We can make things excludable through tech and law, making things that previously looked like public goods providable by private markets. Book project: how do we reconcile that with our intuitions about markets and distributive justice? MLMs vary on type of guidance they give sellers about legal restrictions on marketing claims.

False Advertising 45

False Advertising Trademark Advertising Advertising 45

43(B)log

NOVEMBER 8, 2023

Malwarebytes, which allowed a false advertising claim to proceed based on one software provider’s use of the terms “malicious” and “threat” to describe its alleged competitor’s software, despite a dissent raising free speech arguments. Then I’ll talk about the 9 th Circuit case Enigma Software v.

False Advertising 75

False Advertising Advertising Advertising Trademark 75

43(B)log

OCTOBER 4, 2021

Another way to put it is that aesthetic functionality requires you to have an understanding of the definition of the market in which other clothing makers should be free to compete. This analysis does make some sense, but raises the question of what the how to identify what counts as a “significant” disadvantage.

IP 94

IP Trademark Advertising Advertising 94