43(B)log

FEBRUARY 3, 2025

In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., 30, 2025) This is a ruling on 19 motions to exclude expert testimony in this case, which is mostly an antitrust case; I will focus only on some false advertising-relevant rulings. 14-MD-2542 (VSB), 2025 WL 354671 (S.D.N.Y.

False Advertising 52

False Advertising Advertising Advertising Licensing 52

43(B)log

OCTOBER 6, 2021

In re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices & Antitrust Litig., 17, 2020) A lot of stuff here; I will ignore the non-false advertising related aspects of this mostly antitrust case. 17-md-2785-DDC-TJJ (D. Plaintiff Sanofi failed to show a triable issue of fact on (1), (5), and (6).

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

OCTOBER 29, 2021

11, 2021) A rare bankruptcy/false advertising interaction. Of relevance here, Everlog argued that the false advertising damages were nondischargeable in bankruptcy. BTL argued that summary judgment was inappropriate because the district court didn’t consider whether the false advertising was “malicious.”

False Advertising 56

False Advertising Advertising Advertising Litigation 56

Technology & Marketing Law Blog

SEPTEMBER 9, 2022

The plaintiffs claim it was a spoof app designed to steal cryptocurrency worth $5k in Diep’s case and $500k in Nagao’s case (ouch). False Advertising. This lawsuit relates to the “Toast Plus” app that was available in Apple’s app store. ” Section 230. eBay case from 2008. Apple , and Evans v.

False Advertising 143

False Advertising Privacy Publishing Advertising 143

Technology & Marketing Law Blog

JANUARY 19, 2023

Despite the rhetorical moves to position the lawsuit about the defendants’ design choices, this is actually an easy case. However, this case’s litigation approach is problematic. .” Both apps allegedly were not responsive enough to complaints or unmasking requests, including not following their own purported policies.

False Advertising 105

False Advertising Social Media Publishing Advertising 105

Technology & Marketing Law Blog

SEPTEMBER 5, 2021

” On remand, after 2 more years of litigation, the district court has again dismissed the lawsuit, this time on its lack of merits. Lanham Act False Advertising. Enigma claimed it was false for Malwarebytes to call its programs “malicious,” “threats,” and PUPs. In Asurvio v.

Blogging 145

Blogging False Advertising Law Advertising 145

43(B)log

OCTOBER 18, 2024

The operative claims were false designation of origin/false advertising in violation of the Lanham Act and coordinate state-law claims. Thus, plaintiff couldn’t show falsity for false designation of origin/false advertising. to manufacture fresh milk for the community. the origin. the origin.

False Advertising 59

False Advertising Advertising Advertising Design 59

43(B)log

OCTOBER 12, 2022

Litigation ensued, with lots of claims, including the Lanham Act claims on which I will focus, though breach of contract claims were prominent and survived a motion to dismiss. The Lanham Act claims were styled as false association, “false association with celebrity status,” false designation of origin, and false advertising.

False Advertising 59

False Advertising Advertising Advertising Ownership 59

43(B)log

OCTOBER 31, 2022

HBL argued that, based on the parties’ communications, Lite-Netics should have known early on that there was no infringement (consistent with the analysis performed by the district court, which also found that the accused designs didn’t infringe). The litigation privilege did not extend to making baseless claims about infringement.

Patent Infringement 90

Patent Infringement Patent False Advertising Business 90

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 Design 72

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. That putatively means that the court would characterize all threat identifications as “advertising.” Today I’m blogging the district court decision after that remand.

Law 59

Law False Advertising Advertising Advertising 59

Trademark and Copyright Law Blog

JANUARY 14, 2021

In this 60-minute webinar, designed exclusively for in-house counsel, you will learn how you can protect your company against legal challenges based on its advertising practices. You will also learn what options are available if your competitors are making false or misleading statements in their advertisements.

Advertising 40

Advertising Advertising False Advertising Social Media 40

Indiana Intellectual Property Law

JULY 16, 2021

ABI claims it has attained significant goodwill throughout the United States and the world and that Defendants alleged misleading and false advertisements have caused irreparable damage to ABI’s reputation. ABI is further claiming Defendants’ actions constitute false designation of origin and false advertising in violation of 15 U.S.C.

False Advertising 52

False Advertising Trademark Intellectual Property Advertising 52

43(B)log

FEBRUARY 17, 2022

In re: Elysium Health-ChromaDex Litigation, No. Thus, any false advertising claim would lie against Albaum, not [directly] against ChromaDex. What about statements about how a product was “designed”? Elysium said that its proprietary formulation of two ingredients was “designed” to work together synergistically.

Advertising 80

Advertising Advertising False Advertising Marketing 80

43(B)log

JUNE 14, 2022

May 25, 2022) Alcon sued Lens.com for federal and state false advertising and trademark claims. Alcon also allegedly sells a significant number of lenses overseas that are not FDA-compliant, rendering its product packaging for such lenses false and misleading to consumers, including Lens.com. Alcon Vision, LLC v. Lens.com, Inc.,

False Advertising 72

False Advertising Trademark Advertising Advertising 72

Technology & Marketing Law Blog

DECEMBER 9, 2022

Or, for that matter, hiQ Labs, who has effectively been run out of business by their ongoing litigation with LinkedIn, and who has been on the losing end of almost every key legal decision in their dispute with LinkedIn. And most website-scraper interactions don’t fit within those scraper-litigation patterns. Just ask BrandTotal.

Blogging 131

Blogging Law Contracts Cease and Desist 131

IP Watchdog

OCTOBER 3, 2024

District Court for the Western District of Texas, sitting by designation. The opinion was authored by Judge Reyna and the panel included Judge Alan Albright of the U.S.

Advertising 104

Advertising Advertising Patent Design 104

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

JULY 6, 2022

The parties are involved in related patent litigation. Medline also allegedly made “unfounded allegations” that its system was safer and reduced the risk of catheter-induced urinary tract infections (ugh)/that BD’s new design was more likely to cause UTIs. The allegations were sufficient to state a Lanham Act claim.

False Advertising 45

False Advertising Design Designs Advertising 45

43(B)log

FEBRUARY 14, 2025

the [a]rticles subjects to [ ] litigation plaintiff[s] with documented alternative exposures to asbestos that were known to the defendants because of the defendants roles as expert witnesses in the subjects underlying tort cases. Tolling requires plausible allegations that the defendant undertook an affirmative act designed or intended.

Advertising 52

Advertising Advertising False Advertising Litigation 52

Copyright Lately

SEPTEMBER 29, 2024

In Atari’s case, Judge Fitzwater noted that the Crystal Castles arcade cabinet appeared in the center of nearly every frame of State Farm’s ad, even though parts of the design were obscured by actors and the marquee was replaced with a different title.

Fair Use 110

Fair Use Copyright Artwork Social Media 110

43(B)log

JULY 3, 2023

Zuluaga told a designer to look at Industria’s website when creating Latinfood’s packaging designs for Zenú and Ranchera and brought one of Industria’s Ranchera labels to the designer’s office. Advertisements made for Latinfood Zenú products used the phrase “una deliciosa tradición,” which translates to “a delicious tradition.”

False Advertising 59

False Advertising Advertising Advertising Registration 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. See, e.g., In re Coca-Cola Products Marketing & Sales Practices Litig. (No.

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

FEBRUARY 3, 2024

Mary Katherine Amerine, Reasonably Careless Consumers in TM & False Advertising How do courts treat consumers in TM and false advertising cases? False advertising uses v different framework: consider the challenged ad as a whole, including disclaimers and qualifying language. Beer Nuts, Bulls’ Eye v.

False Advertising 49

False Advertising Contracts Branding Brands 49

Indiana Intellectual Property Law

MARCH 7, 2023

for trademark infringement, false advertising and patent infringement. The EMSCULPT is a non-invasive medical device designed to stimulate muscle contraction using electromagnetic energy. Indianapolis, Indiana –The Plaintiff, BTL Industries, Inc. filed suit against Plaintiff JV Medical Supplies, Inc.

False Advertising 52

False Advertising Contracts Advertising Advertising 52

43(B)log

APRIL 27, 2022

PG&E asked Eco to design a “cutout cover” to prevent animals from coming into contact with “cutouts,” a type of electrical device that rests atop utility poles. The resulting ECC-3, which is designed for cutouts made out of porcelain, is Eco’s most successful product and is also sold to other utility companies.

False Advertising 45

False Advertising Advertising Advertising Reporting 45

43(B)log

JUNE 11, 2024

6, 2024) This is the latest decision in long-running litigation over Malwarebytes’ characterization of Enigma’s competing cybersecurity and anti-malware software as “malicious,” a “threat,” and as a Potentially Unwanted Program (“PUP”). Enigma Software Gp. Malwarebytes Inc., 2024 WL 2883671, No. 17-cv-02915-EJD (N.D. The court disagreed.

Advertising 64

Advertising Advertising Design Designs 64

Fish & Richardson Trademark & Copyright Thoughts

JANUARY 5, 2022

Vivian Cheng focuses her practice on trademark and copyright litigation and also counsels clients on a broad range of issues relating to trademark, trade dress, and copyright protection and enforcement, unfair competition, and false advertising. Will Freeman focuses his practice on patent litigation in U.S.

Due Diligence 59

Due Diligence Patent Prosecution Litigation Intellectual Property 59

43(B)log

SEPTEMBER 10, 2021

There are a number of opinions in this case—the judge spent time on this rather unusual false advertising analysis in a bankruptcy case, including taking care with the expert evidence. Plaintiff Verde designated its current CEO, Sundby, as a non-retained expert witness.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

LexBlog IP

SEPTEMBER 2, 2022

The complaint details efforts to post purchased positive reviews through “‘drip campaigns’ which involve ‘the steady flow of reviews’” that were designed to make the reviews appear natural and organic. We will be watching this case closely as it proceeds in litigation.

False Advertising 52

False Advertising Settlement Publishing Law 52

43(B)log

MAY 2, 2022

26, 2022) This opinion resolves challenges to expert testimony in a false advertising class action under NY’s GBL challenging the advertising of Joint Juice as touting benefits of a useless product; both parties win and lose some. Premier Nutrition Corp., 2022 WL 1225031, No. 16-cv-06980-RS (N.D.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

NOVEMBER 27, 2023

It alleged that the Philips defendants, who make such devices, engaged in false advertising about one of SoClean’s devices in order to deflect blame for the Philips devices’ design defects. In re SoClean, Inc., Marketing, Sales Practices & Products Liab. 2023 WL 8006602, MDL No. 22-542 (W.D. Roussel Corp., 2d 460 (D.N.J.

Advertising 59

Advertising Advertising Marketing Marketing 59

LexBlog IP

SEPTEMBER 14, 2022

While being green or eco-friendly is generally a positive attribute, recent enforcement and litigation activity demonstrates that holding yourself out as a green company and making green claims is not without its risks. There is a limited regulatory framework around green claims, making it prime for litigation.

Marketing 52

Marketing Marketing Advertising Advertising 52

43(B)log

NOVEMBER 19, 2021

Neurelis received orphan drug designation from the FDA for its Valtoco for management of ARS in 2015. It then received fast strack designation, which allowed it priority review, and filed an NDA for Valtoco in 2018; this was pending at the time of the operative complaint. Superior Court (2000) 78 Cal.App.4th

Design 56

Design Designs Patent Prosecution Art 56

43(B)log

MAY 19, 2023

In re Natera Prenatal Testing Litig., In another false advertising case challenging the undisclosed presence of child and slave labor in the supply chain, the Ninth Circuit rejected the existence of any duty to disclose because “the labor practices in question. 22-cv-00985-JST, 2023 WL 3370737, -- F.

Advertising 52

Advertising Advertising False Advertising Law 52

43(B)log

AUGUST 31, 2021

Marketing materials related to the 2016 version designate the same three valleys as “Regions of Origin,” and describes them as “premiere growing regions along Oregon’s coast.” The 2017 label also references the “coast” and includes a map of Oregon with leaves denoting the locations of the Willamette, Umpqua, and Rogue Valleys.

Graphic Design 56

Graphic Design Government Design Designs 56

43(B)log

SEPTEMBER 1, 2021

In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litig., 3, 2021)This MDL litigation centers on contamination—actual or threatened—of groundwater from various defendants’ use of the gasoline additive MTBE and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water. 2021 WL 3371938, No.

Advertising 45

Advertising Advertising Litigation Designs 45