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. A presumption of injury began in the Second Circuit for comparative advertising. Heartwise, Inc.,

False Advertising 80

False Advertising Advertising Advertising Marketing 80

Technology & Marketing Law Blog

AUGUST 11, 2022

Rebecca Tushnet and I are pleased to announce the sixth edition of our casebook, Advertising & Marketing Law: Cases & Materials. Chapter 2: What is an Advertisement? Chapter 3: False Advertising Overview. Chapter 9: False Advertising Practice and Remedies. Price: $12. Chapter 4: Deception.

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43(B)log

SEPTEMBER 28, 2021

14, 2021) Dawgs alleged that Crocs falsely marketed its shoes in violation of the Lanham Act by advertising Croslite, the foam material that Crocs shoes are made from, as “patented,” “proprietary,” and “exclusive.” Crocs, Inc. Effervescent, Inc., 2021 WL 4170997, No. 06-cv-00605-PAB-KMT, No. 16-cv-02004-PAB-KMT (D.

False Advertising 83

False Advertising Advertising Advertising Invention 83

Technology & Marketing Law Blog

DECEMBER 10, 2023

Amazon is an ICS provider: Plaintiff alleges that Defendants “market” and “sell” products to retail consumers “through internet websites.” “Plaintiff does not allege that any of the products that purportedly contain false advertising use its marks “Planet Green” or “Doorstepink.”

False Advertising 95

False Advertising Advertising Advertising Marketing 95

JD Supra Law

OCTOBER 14, 2024

But when advertising or marketing materials overstate the scope of patent or other IP rights, they may create the risk of a false advertising claim. Patented technologies or features can be valuable selling points, setting your products apart from the competition. By: Fenwick & West LLP

False Advertising 73

False Advertising Advertising Advertising Patent 73

43(B)log

JULY 19, 2023

17, 2023) Another entry in the “courts treat Lanham Act false advertising very differently than Lanham Act trademark infringement, despite identical damages provisions” line. CareDx sued Natera for false advertising. Nor did significant sales growth linked to the marketing campaign at issue. Natera, Inc.,

False Advertising 75

False Advertising Advertising Advertising Marketing 75

Technology & Marketing Law Blog

JULY 23, 2024

Rebecca Tushnet and I are pleased to announce the seventh edition of our casebook, Advertising & Marketing Law: Cases & Materials. Preface Chapter 1: Overview Chapter 2: What is an Advertisement? Chapter 3: False Advertising Overview Chapter 4: Deception Chapter 5: Which Facts Matter? Price: $12 * Kindle.

Editing 98

Editing Advertising Advertising Marketing 98

43(B)log

AUGUST 29, 2024

26, 2024) The parties compete in the hand-held gardening tool market. Fiskars alleged that Woodland engaged in false advertising when it described its Regular Duty Bypass Pruner as “designed in the USA” because Woodland actually copied Fiskars’s version of the tool—which would mean that Woodland did not design its tools at all.

False Advertising 59

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43(B)log

AUGUST 25, 2022

22, 2022) The court here allows an antitrust claim to proceed based in part on allegedly false/misleading statements because they form part of the alleged anticompetitive product-hopping scheme and because the unique characteristics of the drug market make market-based responses to false advertising difficult.

False Advertising 59

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43(B)log

DECEMBER 15, 2023

8, 2023) When does TM logic creep into false advertising cases? Tundra allegedly uses the information it scrapes from Faire’s platform, including contact information, to market its product. Faire Wholesale, Inc. Tundra, Inc., 2023 WL 8586681, No. 23-cv-02538-JSC (N.D. Faire sued Tundra, which makes a comparison tool.

False Advertising 59

False Advertising Advertising Advertising Branding 59

43(B)log

AUGUST 9, 2021

TFL’s website allegedly provides a variety “Affiliate Marketing Resources,” and its marketing director’s LinkedIn profile states that his duties include “Run[ning] and monitor[ing] marketing campaigns.” They allegedly “directly run” ad campaigns for their clients, including Beyond Global.

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False Advertising Advertising Advertising Design 69

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. Are lost prospective customers and market share purely economic harms? So too with lost market share. and] expects to complete.

False Advertising 56

False Advertising Advertising Advertising Social Media 56

Delaware Intellectual Property Litigation Blog

JANUARY 8, 2022

January 5, 2022), the Court granted Defendant Next Caller’s post-trial renewed motion for judgment as a matter of law of no false advertising under the Lanham Act and to take away the jury’s award of punitive damages. The Court granted Defendant’s motion for two reasons. A copy of the Memorandum Opinion is attached.

False Advertising 68

False Advertising Advertising Advertising Law 68

43(B)log

DECEMBER 22, 2023

As far as the Court can tell, … PIRG does no work addressing false or misleading labeling for bed sheets, textiles more generally, or even false advertising as a category. So what was the problem? Does that mean every cy pres recipient has to be newly created?

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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.”

False Advertising 59

False Advertising Advertising Advertising Law 59

43(B)log

APRIL 29, 2024

Kitchen Cube cube Leszczynski sued for (1) copyright infringement; (2) violation of Creative Commons license terms; and (3) false advertising and misrepresentation. False advertising: Only ok against Kitchen Cube.

False Advertising 59

False Advertising Advertising Advertising Copyright Infringement 59

43(B)log

OCTOBER 11, 2022

Boston Carriage’s principals voluntarily shared their business knowledge with Boston Suburban, including Boston Carriage’s business and marketing strategies and its online presence.” Boston Suburban registered the domain name “logan-car-service.com.”

False Advertising 64

False Advertising Advertising Advertising Copying 64

43(B)log

AUGUST 22, 2022

The statements were “commercial advertising meant to sell a product, and generally there ‘can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public.’” Not all marketing of artistic works is noncommercial speech. There was also no copyright preemption.

False Advertising 59

False Advertising Advertising Advertising Artistic Work 59

43(B)log

APRIL 26, 2023

25 2023) Previous district court opinion allowing Lanham Act false advertising claims to proceed against Microsoft; applying the Article III analysis that doesn’t (yet?) TocMail launched its IP-evasion product, got a patent, and then sued Microsoft for false advertising—all within two months.” TocMail, Inc.

False Advertising 59

False Advertising Advertising Advertising IP 59

43(B)log

JUNE 17, 2022

7, 2022) The court upheld a contempt finding based on an underlying false advertising claim. The underlying permanent injunction barred defendants from suggesting in promotional materials that their probiotic contained the same formulation as one marketed by De Simone. and many markets globally.” “So

False Advertising 64

False Advertising Advertising Advertising Litigation 64

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.

False Advertising 59

False Advertising Advertising Advertising Patent 59

43(B)log

FEBRUARY 3, 2025

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. Butler was an expert on survey research, market research, sampling, and statistical analysis.

False Advertising 52

False Advertising Advertising Advertising Licensing 52

43(B)log

JULY 24, 2023

The first pegfilgrastim biosimilar hit the market in November 2018, and would ultimately be followed by five others, including Sandoz’s Ziextenzo in November 2019. These ads were based on an obseivational study Amgen conducted itself, in an effort to remain competitive with the emerging biosimilar market. Sandoz Inc.

False Advertising 92

False Advertising Advertising Advertising Marketing 92

43(B)log

JULY 8, 2024

2, 2024) Noriega alleged that Abbott’s PediaSure falsely advertised that it was “[c]linically proven to help kids grow.” Abbott Laboratories, F.Supp.3d 3d -, 2024 WL 402925, No. 4014 (PAE) (S.D.N.Y. The complaint made methodological critiques of Abbott’s favored studies, which weren’t implausible.

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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

False Advertising 64

False Advertising Advertising Advertising Copyright 64

43(B)log

JUNE 17, 2022

InterNACHI argued that ASHI’s tagline constituted Lanham Act false advertising because it portrays ASHI’s entire membership as being educated, tested, verified, and certified, even though its membership includes so-called “novice” inspectors who have yet to complete training or become certified.

False Advertising 56

False Advertising Advertising Advertising Marketing 56

43(B)log

FEBRUARY 26, 2024

Defendants contended that marketing unfinished frames and receivers as “legal” was protected by the First Amendment. First, the marketing was commercial speech: “NO FFL Required!” came in the midst of other advertising language, such as “Various colors available,” and “no RED TAPE. It was not. Shalit, 110 A.D.2d

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False Advertising Advertising Advertising Marketing 59

Indiana Intellectual Property Law

MAY 31, 2024

Because Eli Lilly places patient safety at the forefront, the company has been alarmed by the dangers of Totality Medispa’s products being falsely marketed as FDA-approved tirzepatide, Mounjaro®, or Zepbound®. Any product labeled as “tirzepatide” that is not sold by Lilly is not FDA-approved and could be dangerous.

False Advertising 52

False Advertising Advertising Advertising Settlement 52

43(B)log

FEBRUARY 16, 2024

12, 2024) The court denied certification to a proposed class of dentists/orthodontists over SDC’s allegedly false advertising for its plastic aligners/teledentistry services, based on difficulties identifying harm/causation.

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False Advertising Advertising Advertising Reporting 45

43(B)log

OCTOBER 16, 2024

“But how can the Court permanently enjoin the sales of three specific products, when there is only an allegation or evidence supporting at most one product being falsely advertised? Plaintiff was required to plead false advertising with specificity, then prove it.” It only did so with evidence as to B07ZH6PVD4.

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Technology & Marketing Law Blog

MARCH 6, 2023

The false advertising claim fails because Lops didn’t show that the videos “are commercial speech and made for the purpose of influencing consumers to buy YouTube’s goods or services.” YouTube appeared first on Technology & Marketing Law Blog. ” Cites to Tiffany v. eBay and Sellify v.

Trademark 105

Trademark False Advertising Advertising Advertising 105

43(B)log

SEPTEMBER 6, 2023

Toyota USA sued Allen for grey marketing in violation of the Lanham Act and related claims, asserting that material differences included the existence of a manufacturer-backed warranty, the shipping and packaging of the parts, and the appearance and condition of the parts. The court declined to dismiss the counterclaims.

Marketing 59

Marketing Marketing False Advertising Advertising 59

43(B)log

JANUARY 17, 2024

Ultra Bond alleged that Safelite violated the Lanham Act by falsely advertising that windshield cracks longer than six inches could not be safely repaired and instead required replacement of the entire windshield. Safelite is the VGRR market leader: in 2016, it had 35.4% of the market; its closest competitor had just 3%.

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43(B)log

MARCH 14, 2023

The result is that FedEx routes are, as a practical matter, intangible commodities traded on a competitive market and subject to price fluctuation based on the actual or perceived value of each individual route.

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False Advertising Advertising Advertising Business 59

43(B)log

JANUARY 22, 2025

InSinkErator also provided market research to show that consumers ranked horsepower as one of the top purchasing considerations for garbage disposals, as well as retailer perspective indicating that horsepower was a key differentiating factorLowes and Home Depot organize and advertise them by horsepower.

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False Advertising Advertising Advertising Marketing 52

43(B)log

AUGUST 16, 2021

11, 2021) Another timeshare versus timeshare exit false advertising case. Marketing Defendants allegedly falsely advertise timeshare exit services by promoting a legitimate process to exit timeshare contracts. This opinion considered only the marketing defendants.

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False Advertising Advertising Advertising Contracts 72

43(B)log

SEPTEMBER 22, 2023

Lanham Act and state unfair competition law: Although Geomatrix alleged disparagement, it failed to describe what “independent harm” occurred in the market or how defendants’ actions actually “influenc[ed] consumers’ purchasing decisions.” This allegedly harmed Geomatrix’s business.

False Advertising 59

False Advertising Advertising Advertising Business 59