JD Supra Law

JUNE 22, 2023

In a case originally based on a false advertising claim under § 43(a) of the Lanham Act, the US Court of Appeals for the Ninth Circuit affirmed in part, reversed in part and remanded the district court’s dismissal of the claim. Enigma Software Group USA, LLC v. Malwarebytes, Inc., 21-16466 (9th Cir.

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LexBlog IP

DECEMBER 19, 2023

But can competitors turn that dislike into a claim for false advertising under the Lanham Act? Not always, as the United States District Court for the Eastern District of Michigan recently dismissed false advertising claims brought by energy drink maker Vitamin Energy, Inc.

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43(B)log

JANUARY 13, 2023

Plaintiffs’ claims sought to hold the dairy farmers directly or contributorily liable under the Lanham Act, and alleged unfair competition/false advertising/deceptive trade practices under Hawaii law. Was a false geographic origin claim one for false association, § 1125(a)(1)(A), or false advertising, § 1125(a)(1)(B)?

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43(B)log

FEBRUARY 16, 2024

30, 2024) (R&R) Recommendation: Dastar should block Qingdao’s Lanham Act false advertising counterclaims based on Lashify’s claim to be the originator of lash technology, but false patent marking counterclaims should survive. Qingdao Lashbeauty Cosmetic Co., 2024 WL 629985, No. W-22-CV-00776-ADA-DTG, No. 1, 2017 to Apr.

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43(B)log

SEPTEMBER 28, 2021

There’s nothing entailed here about Crocs falsely claiming credit for something someone else did, as there was in Baden where the allegations did at least resemble reverse passing off.] When the Supreme Court left §43(a)(1)(B) claims open in Dastar , this is the kind of thing that fits well.

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43(B)log

DECEMBER 10, 2021

Thus, for disgorgement of profits, a plaintiff need only show the defendant’s “sales of the allegedly falsely advertised products,” after which the burden shifts to the defendant to prove “any costs or deductions.” This contrasts to damages, which require proof of a causal link between plaintiff’s injury and defendant’s conduct.

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43(B)log

APRIL 18, 2023

12, 2023) Following a large verdict for Monster on false advertising claims, this opinion discusses extensively the requirements for injunctive relief in false advertising cases. But Defendants have brought on themselves these unfortunate consequences through their false advertising.”

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43(B)log

JUNE 9, 2021

Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising , 106 Iowa L. 1841 (2021) From the introduction: Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition.

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43(B)log

MARCH 16, 2023

Despite Romag , the court declines to award disgorgement or fees in this false advertising case. A jury found that Harbor Breeze proved all elements of liability for false advertising but awarded $0 in damages and profits. But here, evidence connecting false advertising to defendants’ profits was lacking. (Is

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Technology & Marketing Law Blog

DECEMBER 10, 2023

The court simply responds: “the Ninth Circuit has held that Section 230 immunity applies to false advertising claims and other claims that are based on purportedly false representations.” The post Section 230 Helps Amazon Defeat False Advertising Lawsuit Over Printer Ink Cartridges–Planet Green v.

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43(B)log

OCTOBER 5, 2021

28, 2021) Mostly this case is about other things, but the court finds a duty to defend in the underlying false advertising case. Luxottica was sued in a class action alleging that its AccuFit system for prescription eyeglasses was falsely advertised as more accurate.

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43(B)log

DECEMBER 12, 2022

6, 2022) The district court reverses the bankruptcy court ruling ( discussed here ) that held that false advertising had interfered with the debtor’s estate in violation of the automatic stay. But why would some advertising constitute exercising control while other advertising didn’t? In re Windstream Holdings, Inc.,

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43(B)log

APRIL 25, 2023

Republic alleged that HBI, its competitor in the tobacco rolling paper industry, engaged in false advertising under the Lanham Act, unfair competition, and violations of the IUDTPA. Also, a company’s belief that its advertising is important and profitable “is not evidence that the advertising actually had that effect.”

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43(B)log

MAY 22, 2023

May 17, 2023) The court grants these timeshare plaintiffs’ motion for a bench trial, ruling that the Seventh Amendment doesn’t guarantee a jury trial in a false advertising case where the plaintiffs seek only equitable remedies. Timeshare Lawyers P.A., 2023 WL 3510374, No. 20-24681-Civ-Scola (S.D. Hard Candy, Ltd.

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LexBlog IP

FEBRUARY 21, 2023

Universal City Studios, LLC , the United States District Court for the Central District of California refused to dismiss Woulfe’s false advertising claims, finding that a deceptive movie trailer can form the basis of false advertising claims and that trailers are not necessarily immune from suit by the First Amendment because trailers are commercial (..)

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JD Supra Law

APRIL 3, 2024

At the National Advising Division (NAD), competitors will sometimes go for the brass ring, the big prize, the whole enchilada, and ask the NAD to recommend that an advertiser’s trademarked slogan or even the brand name be discontinued. By: BakerHostetler

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43(B)log

APRIL 18, 2023

ZimVie intervened and counterclaimed for declaratory judgment of invalidity, cancellation fo the color marks registration, declaratory judgment of noninfringement, false advertising under the Lanham Act and California law, and tortious interference.

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43(B)log

APRIL 25, 2022

25, 2022) I know it probably seems sometimes like I approve of every expansive use of false advertising law, but sometimes even I find an aggressive position to go too far. It is enough if a defendant provides “a necessary product or service, without which the false advertising would not be possible.”

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43(B)log

JUNE 29, 2023

Vitamins Online sued Heartwise under the Lanham Act and Utah’s Unfair Competition Law for false advertising about the ingredients of its competitive nutritional supplements and manipulating those products’ Amazon reviews. Nor was Vitamins Online required to prove a nexus between the false advertising and the lost sales.

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43(B)log

AUGUST 22, 2022

The First Amendment has long coexisted with no-fault false advertising laws. Citing Dastar and Rogers ; noting in a footnote that Dastar suggested that Lanham Act false advertising claims might sometimes govern statements about artistic provenance without raising any First Amendment concern.]

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43(B)log

APRIL 29, 2022

22, 2022) Part of a larger dispute; the National Association of Realtors (NAR) counterclaimed against REX for false advertising in violation of the Lanham Act. But it didn’t allege facts explaining how REX’s purportedly false advertisements have frustrated its mission or caused it to divert its resources. Zillow, Inc.,

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43(B)log

FEBRUARY 26, 2024

State of N.Y. Arm or Ally, LLC, 2024 WL 756474, No. 22-CV-6124 (JMF) (S.D.N.Y. 23, 2024) The AG sued sellers of “unfinished frames and receivers” — also known as “80% lowers” or “receiver blanks” —designed to evade restrictions on gun sales.

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43(B)log

OCTOBER 29, 2021

27, 2021) Ideavillage sued CCB for trademark infringement and false designation of origin related to Ideavillage’s “Copper Fit” line of copper-infused compression garments. Here, the court granted leave to amend to add a false advertising claim. Nor would amendment be futile.

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43(B)log

MARCH 9, 2022

False designation of origin/false advertising: Lasoff v. And it dismissed false advertising claims as “duplicative of his infringement claim.” Amazon.com, Inc., App’x 400, 401 (9th Cir.

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43(B)log

JANUARY 23, 2023

OSD’s signal-to-noise statement was literally false because it advertised its amplifier as having 115 decibels on numerous websites even though OSD said in other statements under penalty of perjury that the signal-to-noise ratio was 104 decibels, and it didn’t submit test results or objective evidence that it was 115.

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Technology & Marketing Law Blog

SEPTEMBER 9, 2022

McNeil. * Three Keyword Advertising Decisions in a Week, and the Trademark Owners Lost Them All. * Competitor Gets Pyrrhic Victory in False Advertising Suit Over Search Ads–Harbor Breeze v. The post Griper’s Keyword Ads May Constitute False Advertising (Huh?)–LoanStreet Reyes & Adler v.

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43(B)log

DECEMBER 18, 2023

15, 2023) Simpson sued its competitor MiTek for using Simpson part numbers for structural connectors/fasteners for use in the construction industry in its catalogs/other promotional material; the court here, after a nonjury trial before the magistrate judge, rather comprehensively rejects its false advertising, trademark, and copyright claims. (It

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43(B)log

MARCH 4, 2022

for falsely advertising them as “flushable” under California’s CLRA/UCL/FAL, NY’s GBL, Illinois’s ICFA, and breach of warranty. Dude Prods., 2022 WL 621815, No. 21-cv-00682 (N.D. 3, 2022) Plaintiffs sued the makers of Dude Wipes [I really must ask: are men ok?]

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JD Supra Law

MARCH 31, 2022

The US Court of Appeals for the Tenth Circuit affirmed a district court’s grant of summary judgment in favor of a defendant baker on a trade dress infringement claim and reversed the district court’s denial of the defendant baker’s motions for judgment as a matter of law on trade secrets misappropriation and false advertising claims.

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43(B)log

SEPTEMBER 13, 2021

2, 2021) Rex sued Zillow and the National Association of Realtors for antitrust and false advertising violations. Surprisingly, the antitrust claims survive, as do false advertising claims agains Zillow. C21-312 TSZ, 2021 WL 3930694 (W.D. NAR “is the nation’s largest trade association for real estate professionals.”

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43(B)log

OCTOBER 11, 2022

False advertising: Beyond the use of the mark, Boston Suburban allegedly took customer reviews from Boston Carriage and assigned fictitious names to the customers when it copied the reviews onto the “copycat” website.

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43(B)log

MARCH 9, 2022

The district court then permanently enjoined defendants from engaging in specified false advertising and denied plaintiffs’ request for attorneys’ fees. “The jury also declined to award the equitable remedy of disgorgement of profits, which had been submitted to the jury with the agreement of all parties.”

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43(B)log

OCTOBER 12, 2021

7, 2021) Quidel appealed the grant of summary judgment to Siemens on Quidel’s Lanham Act false advertising claims and related state claims. Quidel alleged that Siemens advertised (1) but provided (2). And there was no triable issue on actual injury based on allegedly false advertising to the physicians.

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43(B)log

SEPTEMBER 7, 2023

4, 2023) McCracken alleged that SlimFast food products were falsely advertised as “CLINICALLY PROVEN [ – ] LOSE WEIGHT & KEEP IT OFF” on the front of their packaging. McCracken v. KSF Acquisition Corp., 2023 WL 5667869, No. 5:22-cv-01666-SB-SHK (C.D.

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43(B)log

NOVEMBER 19, 2021

That the producer defrauded consumers is of no moment for antidumping purposes, as the Department lacks jurisdiction to police false advertising violations. But most, if not all, of its promotional, advertising, and sales materials characterized its products as manufactured with maple, a higher-grade and more expensive wood than birch.

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43(B)log

APRIL 25, 2022

pictures of not-good plywood from case Plaintiffs alleged both direct and contributory false advertising. Defendants challenged whether plaintiffs identified any false or misleading statements by defendants. In Baldino’s Lock & Key Serv., Google, Inc., App’x 81 (4th Cir.

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43(B)log

MARCH 4, 2022

2, 2022) The court of appeals upholds the rejection of ThermoLife’s false advertising claims (Lanham Act and Florida’s FDUTPA) on statutory standing grounds. ThermoLife Int’l LLC v. BPI Sports, LLC, 2022 WL 612669, No. 21-15339 (9 th Cir. ThermoLife’s allegations were too speculative to establish proximate causation.

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