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.

False Advertising 59

False Advertising Advertising Advertising Law 59

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

False Advertising Advertising Advertising Marketing 59

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

AUGUST 11, 2021

Although in the copyright decision, the court made reference to “rather surprising oversights,” UpCodes corrected issues when notified by ICC. UpCodes, Inc., 2021 WL 1236106, Nos. 6261 (VM) & 20 Civ. 4316 (VM) (S.D.N.Y.

False Advertising 64

False Advertising Copying Advertising Advertising 64

43(B)log

JUNE 17, 2022

7, 2022) The court upheld a contempt finding based on an underlying false advertising claim. Also, a press release that discussed separate litigation in Italy about who owned VSL#3’s bacterial strains, unfairly compared VSL#3 and Visbiome referred to plaintiffs’ “aggressive efforts to sell their competing, generic probiotic product.”

False Advertising 64

False Advertising Advertising Advertising Litigation 64

Technology & Marketing Law Blog

DECEMBER 9, 2022

Someone has referred you here because you’ve said something wrong about the laws related to web scraping in the United States. You’ve Been Referred Here Because You’re Wrong About The First Amendment.” The prior part explained the most recent ruling, a devastating but not unexpected loss for hiQ. Don’t worry! You’re not alone.

Blogging 131

Blogging Law Contracts Cease and Desist 131

43(B)log

SEPTEMBER 16, 2021

On GitHub, the landing page was called “ONgDB – Neo4j Enterprise Fork: Graphs for Everyone,” contained numerous references to Neo4j throughout, and was very similar to that of Neo4j EE. Summary judgment granted on state and federal false advertising claims. False designation of origin: Yep.

False Advertising 64

False Advertising Advertising Advertising Licensing 64

IP Tech Blog

MARCH 6, 2023

JC Penny, for example, has been hit with a class action lawsuit in the Southern District of California over its alleged advertising practice of using “false reference pricing.” The products, Carranza claims , were never sold at the listed reference price as advertised. Do the claims have merit?

False Advertising 62

False Advertising Advertising Advertising Settlement 62

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. 50 Clinical studies prove the SlimFast Plan helps you effectively lose weight."

False Advertising 59

False Advertising Advertising Advertising Settlement 59

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 label also includes a cartoon giraffe next to, and exceeding the height of, a cartoon ruler.

False Advertising 49

False Advertising Advertising Advertising Publishing 49

43(B)log

SEPTEMBER 28, 2021

Entrepreneur’s desire to bring forth a claim for false advertising against a competitor in a similar market is not unusual behavior.” Along with adding a defendant, Entrepreneur might eventually be allowed to add a false advertising claim, based on facts that were allegedly discovered only during Roach’s deposition.

False Advertising 45

False Advertising Advertising Advertising Contracts 45

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. This isn’t a false statement of origin (but what about character or qualities?)

False Advertising 59

False Advertising Advertising Advertising Patent 59

43(B)log

OCTOBER 9, 2023

million consent judgment, which defendants touted in a press release and advertised on Zinus’s website even after the court vacated the stipulated judgment. Courts have generally harmonized the Lanham Act with the Patent Act by requiring bad faith before claims about patent infringement can constitute false advertising.

False Advertising 104

False Advertising Patent Infringement Patent Advertising 104

43(B)log

SEPTEMBER 10, 2021

AB allegedly began advertising for a similar product, claiming that its load bars have “30% more Holding Power than similar Disposable Load Bars,” allegedly an admitted reference to Logistick. 15, 2021) Logistick sells disposable load bars which are used to secure cargo freight during transport.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JULY 24, 2023

Amgen argued that there was no impact because the ads didn’t refer to Sandoz or Ziextenzo, and Sandoz couldn’t identify a single patient, prescriber, or insurer that would have used Ziextenzo but chose Onpro because of the advertising claims. And economic analysis is a valid means of proving an injury caused by false advertising.

False Advertising 92

False Advertising Advertising Advertising Marketing 92

43(B)log

OCTOBER 6, 2021

17, 2020) A lot of stuff here; I will ignore the non-false advertising related aspects of this mostly antitrust case. The court says the usual not-good things about false advertising’s relationship to antitrust, unfortunately: Deceptive speech usually doesn’t violate antitrust laws. 17-md-2785-DDC-TJJ (D.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

SEPTEMBER 21, 2021

References in Columbia’s marketing materials to “the on-campus experience” were often mere puffery “too vague to be enforced as a contract,” such as a statement in a University publication that “Columbia is an in-person kind of place.”

False Advertising 59

False Advertising Contracts Advertising Advertising 59

43(B)log

JUNE 30, 2022

Could ULC Monastery show cognizable harm? On the Lanham Act claim, that required showing sales diversion or lessening of goodwill. The Ninth Circuit has “generally held. that ‘when a plaintiff competes directly with a defendant, a misrepresentation will give rise to a presumed commercial injury that is sufficient to establish standing.’”

False Advertising 59

False Advertising Advertising Advertising Business 59

LexBlog IP

MARCH 6, 2023

JC Penny, for example, has been hit with a class action lawsuit in the Southern District of California over its alleged advertising practice of using “false reference pricing.” The products, Carranza claims , were never sold at the listed reference price as advertised. Do the claims have merit?

False Advertising 52

False Advertising Advertising Advertising Settlement 52

43(B)log

AUGUST 16, 2021

PTRA argued that, because Pasadena has referred to the Rose Bowl Game as “the game” in the past, the Rose Bowl Game was readily identifiable without using the term. This also got rid of the breach of contract claim, which was based on the alleged trademark infringement and false advertising.

Fair Use 94

Fair Use False Advertising Intellectual Property Ownership 94

43(B)log

DECEMBER 15, 2023

In Sybersound , the Ninth Circuit explained that the “nature, characteristics, and qualities” of the karaoke recording referred to things like the “quality of its audio and visual effects.” Such attributes would affect the consumer’s experience rather than the rights of third parties.”

False Advertising 45

False Advertising Advertising Advertising Intellectual Property 45

43(B)log

JANUARY 27, 2023

24, 2023) WS sued Wayfair, alleging patent infringement, Lanham Act false advertising, Massachusetts and California statutory unfair competition and Massachusetts false advertising based on alleged copying of West Elm products. Wayfair moved to dismiss the false advertising and unfair competition claims.

False Advertising 59

False Advertising Advertising Advertising Designs 59

43(B)log

SEPTEMBER 30, 2021

Contributory false advertising under the Lanham Act: The Ninth Circuit has held that for contributory liability, “a defendant must have (1) ‘intentionally induced’ the primary infringer to infringe, or (2) continued to supply an infringing product to an infringer with knowledge that the infringer is mislabeling the particular product supplied.”

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JANUARY 3, 2024

I’m only going to discuss the false association/false advertising bits; as to the latter, state law provides more protection than federal because of the “commercial advertising or promotion” requirement for Lanham Act false advertising. The false association/coordinate state law claims survived.

False Advertising 59

False Advertising Cease and Desist Advertising Advertising 59

43(B)log

JULY 29, 2024

23, 2024) Skillz sued its competitor in mobile gaming, Papaya, for violating federal and NY law against false advertising by falsely advertising that its games pit human players against each other when in fact Papaya uses bots masquerading as human players. Papaya Gaming, Ltd., 2024 WL 3526853, No. 24cvl646(DLC) (S.D.N.Y.

False Advertising 59

False Advertising Advertising Advertising Law 59

43(B)log

AUGUST 25, 2021

This was allegedly still false and misleading, and First Databank allegedly falsely advertised that it “compile[s]” the relevant information in its database and for its coding determinations from the FDA and from manufacturers, such as Alfasigma. The database does not list any of Defendant’s own products or additional services.

False Advertising 72

False Advertising Advertising Advertising Designs 72

43(B)log

JANUARY 18, 2022

Moreover, an ad on a public Facebook page that referred customers to the data sheet was a commercial advertisement within the meaning of the Lanham Act; it was intended to bolster sales and was “sufficiently disseminated” to fall within §43(a)(1)(A). Likewise, ISK adequately alleged contributory false advertising claims against PMG.

False Advertising 59

False Advertising Advertising Advertising Law 59

Technology & Marketing Law Blog

MAY 31, 2024

He then sued the court document repository websites (and other defendants) for defamation, false advertising, and more. He too sought to suppress references to the proceeding; that too failed. In 2020, Medina got the disclosures from the 2014 case sealed. The trial court anti-SLAPPED that lawsuit. The appeals court affirms.

False Advertising 105

False Advertising Publishing Advertising Advertising 105

43(B)log

APRIL 15, 2024

The court denies a preliminary injunction on the trademark claims based on lack of likely success on the merits, but declines to dismiss either infringement or false advertising claims. Indeed, the evidence shows that, in ordinary parlance, the term “good meat” is used routinely to refer to the concept of sustainably sourced meat.

False Advertising 64

False Advertising Advertising Advertising Marketing 64

Technology & Marketing Law Blog

JULY 22, 2021

In characterizing Section 230, every reference to “immunize” is changed to “‘protect.” The prior opinion contained two references to Section 230 as “broad.” Courts have rejected Section 230 defenses against claims for false advertising, deceptive trade practices, and tortious interference.

False Advertising 141

False Advertising Contracts Editing Advertising 141

43(B)log

AUGUST 7, 2023

3, 2023) Potentially interesting pretrial rulings in this false advertising/TM case: Goli’s motion to exclude the testimony of Dr. Jerry Wind was granted in part to preclude him from opining on the ultimate question of likely confusion or balancing the trademark infringement factors, which was for the jury. GOLO, LLC v. 20-667-RGA (D.

False Advertising 70

False Advertising Advertising Advertising Law 70

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

JULY 25, 2024

Portkey sued for unfair competition/reverse passing off, false advertising, and trademark infringement under the Lanham Act, as well as related state-law claims. In 2022, the relationship dissolved; Portkey objected to Venkateswaran’s alleged references to Portkey and its asserted trademarks since 2022.

Trademark Law 59

Trademark Law Trademark False Advertising Law 59

Technology & Marketing Law Blog

APRIL 27, 2024

This is a false advertising lawsuit again the mobile app game Game of Thrones: Conquest. Also, the district court took issue with the 2020 call-to-action referring to the TOS as “Terms of Use” when it was actually the “Terms of Service.” sought to send the case to arbitration. Warner Bros.

False Advertising 98

False Advertising Government Privacy Designs 98

Technology & Marketing Law Blog

MAY 22, 2023

Each log entry includes the date of the call and the caller’s name, as well as a column labeled “[w]hat they said referred by.” Assuming each of the 236 references to Lerner & Rowe in the call logs is a confused consumer, the court says that means only about 0.2% clickthrough rate. LoanStreet v. Reyes & Adler v.

Advertising 111

Advertising Advertising False Advertising Trademark 111

43(B)log

MAY 16, 2022

To be sure, some posts did refer to a future party, but none had any particulars. Nor did it err in its false advertising analysis, which requires likely deception of reasonable consumers. The mere statement that Doe was a “party planner” was not enough, in the overall context, to allege commercial use.

False Advertising 72

False Advertising Advertising Advertising Trademark Law 72

43(B)log

MARCH 29, 2024

The asterisk following “dermatitis” referred to this statement: “*the most common allergy in infancy. Although Gerber referred to the qualified health claim determination in its ads, it didn’t use any of the approved versions. A]dvertisements that reframe critiques of a product as praise can constitute false advertising.”

False Advertising 104

False Advertising Advertising Advertising Reporting 104