43(B)log

SEPTEMBER 16, 2021

Perplexingly, the court also suggested that in comparative advertising defendants would be bound by Neo4j’s trademark guidelines, which does not seem exactly right unless those guidelines happen to reproduce the law (perhaps they do). Summary judgment granted on state and federal false advertising claims.

False Advertising 64

False Advertising Advertising Advertising Licensing 64

43(B)log

AUGUST 1, 2022

Plaintiffs also sufficiently pled that they were directly harmed by RJR’s false and misleading advertising. Liability attaches to those who “[k]nowingly makes a false representation” as to the product “for sale,” and the definition of “sale” explicitly includes an “attempt to sell” the product or service. “[I]ndividuals

False Advertising 59

False Advertising Advertising Advertising Law 59

43(B)log

AUGUST 12, 2021

Safelite allegedly falsely advertised that (1) “if damage spreads beyond the size of a dollar bill, a replacement will be necessary”; (2) “when a chip is smaller than a dollar bill, it can usually be repaired without replacing the windshield.” Safelite counterclaimed for trade secret theft not related to advertising.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

SEPTEMBER 30, 2021

We are definitely not there yet. I don’t have a very strong position on whether misleadingness should be empirically or normatively assessed, but I do think courts should be clear on what they’re doing and not bounce unpredictably between the two concepts.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

JUNE 26, 2023

lawsuits against clubs for advertising them with images of models without those models’ consent. The relevant policy provides coverage for bodily injury, property injury, and advertising injury, subject to certain conditions and exclusions. Covered personal/advertising injury included d.

Advertising 72

Advertising Advertising False Advertising Intellectual Property 72

43(B)log

MARCH 6, 2024

1, 2024) NYU Langone sued Northwell for trade dress infringement, unfair competition and false designation of origin, and false advertising under the Lanham Act, as well as related claims under the New York GBL and New York common law. The court dismissed the complaint—the false advertising claims with prejudice.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

SEPTEMBER 6, 2023

Lanham Act false advertising: Allen alleged that Toyota’s statements that “[t]he purchase. a breach of your dealer agreement” constituted false advertising because the agreement in fact allows for purchases of Toyota parts from other sources, including for non-warranty repairs.

Marketing 59

Marketing Marketing False Advertising Advertising 59

43(B)log

SEPTEMBER 27, 2021

13, 2021) Not having a materiality or harm requirement really makes a difference in trademark cases compared to false advertising cases—look at the reasons this false advertising claim fails. AFC sued MedHelp for Lanham Act false advertising.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

MAY 19, 2023

Roblox sued for copyright infringement, false advertising, trademark infringement, false association and false designation of origin, trade dress infringement, intentional interference with contractual relations, breach of contract, and false advertising and unfair competition under California law.

Copying 94

Copying False Advertising Social Media Advertising 94

43(B)log

SEPTEMBER 13, 2022

12, 2022) An insurance coverage case about a false advertising claim that doesn’t turn on “advertising injury”! Did the undefined term “unfair trade practices” include consumer protection and false advertising? DBA Godiva Chocolatier, Inc. Endurance Am. N21C-10-100 MMJ CCLD, 2022 WL 4128608 (Del.

False Advertising 59

False Advertising Settlement Advertising Advertising 59

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 Designs 72

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. That was too extensive, so the claims all failed.

False Advertising 72

False Advertising Advertising Advertising Designs 72

43(B)log

AUGUST 25, 2022

The false advertising parts: Jeong alleged that Nexo advertised to consumers that it does not own users’ collateral (e.g., This allegedly breached Nexo’s duty of good faith and fair dealing and constituted a violation of California’s UCL. The court partially granted/denied Nexo’s motion to dismiss.

False Advertising 59

False Advertising Ownership Advertising Advertising 59

43(B)log

OCTOBER 9, 2023

Plaintiff alleged that Stoma falsely advertised that its Capt-all device, which fits onto the end of a high volume evacuator valve, is an amalgam separator and EPA compliant. Both options require at least 95% removal efficiency; the former must use ANSI testing, while the latter must use sampling averages.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

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

MARCH 28, 2024

26, 2024) Defendant, d/b/a Wonderland, operated an adult entertainment club and was one of the many such sued by various models for using their images in advertising without their consent from 2015 to 2019. The court found that definition of “Exhibitions and Related Marketing” was so broad as to “preclude coverage in almost any circumstance.”

Advertising 64

Advertising Advertising Settlement Contracts 64

43(B)log

DECEMBER 8, 2022

At trial, Republic alleged that HBI engaged in false advertising under the Lanham Act, unfair competition, and violations of the IUDTPA. It also rejected the Lanham Act false advertising claim, but found unfair competition and IUDTPA violations by HBI. And the advertising implies that the paper is made in Alcoy.

False Advertising 59

False Advertising Advertising Advertising Editing 59

43(B)log

AUGUST 20, 2021

24, 2021) Plaintiffs sought class certification of their false advertising claims based on the claims that KIND falsely advertised “All Natural / Non-GMO,” “Non-GMO,” and “No Genetically Engineered Ingredients”; KIND sought to exclude expert reports. In re KIND LLC “Healthy and All Natural” Litig., 2021 WL 1132147, Nos.

False Advertising 45

False Advertising Advertising Advertising Litigation 45

43(B)log

OCTOBER 11, 2021

Both sides now claim the other is liable for false advertising, among other claims.” Defendants also allegedly infringed RCI’s trademarks by using photographs of Roberto Coin jewelry and RCI’s logo in Kings Stone’s advertising after RCI terminated the relationship. And yes even borsheims has to be held accountable.”

Marketing 59

Marketing Marketing False Advertising Advertising 59

Technology & Marketing Law Blog

JANUARY 8, 2024

This is a case involving a trademark owner and a competitive keyword advertiser. The court says there can’t be MULTIPLE instances of INITIAL interest confusion: By definition, initial interest confusion is “confusion that creates initial customer interest.” Google * Competitive Keyword Advertising Claim Fails–Reflex Media v.

Trademark 79

Trademark Advertising Advertising False Advertising 79

43(B)log

JANUARY 21, 2022

18, 2022) Guardant sued its competitor Natera over an alleged “campaign of false and misleading advertising directed at” Guardant’s new product Reveal, a liquid biopsy cancer assay for early-stage colorectal cancer (CRC). Guardant Health, Inc. Natera, Inc., 2022 WL 162706, No. 21-cv-04062-EMC (N.D.

False Advertising 64

False Advertising Advertising Advertising Journalism 64

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

JUNE 15, 2022

Monster alleged that VPX falsely advertised Super Creatine as a source of creatine providing numerous physical and mental benefits, advertising that BANG can improve brain function, has anti-depressive effects, and helps build muscle. means, because none of the allegedly false statements actually said “source of creatine.”

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

SEPTEMBER 7, 2021

Perhaps overreacting, Wakefern sued for trademark infringement and false advertising in violation of the Lanham Act and violation of state unfair competition law, which is coextensive and thus disappears from our story. False advertising: Not commercial advertising or promotion.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

OCTOBER 26, 2021

20, 2021) In this timeshare exit false advertising litigation, the court excludes Wyndham’s expert. Timeshare exit entities like defendant TET used “online advertising and oral sales pitches to timeshare owners to convince them to sign up for TET’s service.” Wyndham Vacation Ownership, Inc. Sussman, 2021 WL 4948099, No.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JANUARY 11, 2023

9, 2023) Simpson sued MiTek for Lanham Act and state law false advertising/passing off, and for copyright infringement. For false advertising, the control group respondents were exposed to the same four MiTek stimuli but with the reference numbers removed. Simpson Strong-Tie Co. 2023 WL 137478, No. 20-cv-06957-VKD (N.D.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

SEPTEMBER 23, 2022

He also alleged that the results of a survey show that 88 percent of consumers are deceived by the White Baking Morsels’ advertising and incorrectly believe they contain white chocolate.

False Advertising 59

False Advertising Advertising Advertising Law 59

43(B)log

JANUARY 20, 2023

18, 2023) T-Mobile’s “Banned Seniors” was a nationwide marketing and advertising campaign intended to attract customers over the age of fifty-five. AT&T did not show likely success on the merits of its Lanham Act false advertising claim and did not receive a preliminary injunction. AT&T Mobility LLC v.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

DECEMBER 23, 2022

Although expressing some skepticism, the court found that they stated a valid false advertising claim. Thus, Universal argued that the alleged misrepresentation was too vague and non-specific to definitely represent that viewers would see De Armas or her segment in the movie. of a motion picture.”

False Advertising 72

False Advertising Advertising Advertising Social Media 72

43(B)log

SEPTEMBER 3, 2021

The court found that plaintiffs plausibly showed that ski passes were encompassed within the definition of “services.” But “a reasonable consumer would understand this was a promise for a definite period: the period of the 2019/20 year ‘during which snow conditions allow for skiing and when people typically go skiing.’”

Contracts 59

Contracts Advertising Advertising Licensing 59

43(B)log

MARCH 20, 2023

WatsonSeal Marketing sued for false advertising under the Lanham Act, tortious interference with business relations under Alabama law, and unjust enrichment under Alabama law, but, having kicked out the Lanham Act claims, the court didn’t proceed any further with the state claims.

False Advertising 60

False Advertising Advertising Advertising Marketing 60

43(B)log

SEPTEMBER 5, 2023

Core-Brace alleged both false advertising and false association from the statements in the design manual and related documents. Core-Brace didn’t need to definitively exclude other reasons, but it needed to identify evidence “demonstrating a nexus between the alleged misrepresentations and its injury.”

False Advertising 59

False Advertising Law Advertising Advertising 59

43(B)log

OCTOBER 19, 2023

I’ll focus, as usual, on the false advertising bits and ignore the securities law parts. This statement was plausibly false when made. The FAL explicitly provides that plaintiffs can recover for advertisements that were “known, or which by the exercise of reasonable care should be known, to be untrue or misleading.”

Due Diligence 64

Due Diligence False Advertising Social Media Advertising 64

43(B)log

MARCH 10, 2023

Both copyright and false advertising claims (based on Sports Mall’s disparagement of eBay sellers as unreliable) survived a motion to dismiss, but the false advertising claim can’t make it past summary judgment, while Krikor received partial summary judgment on the copyright claim. Nor was the use of the photos fair use.

False Advertising 59

False Advertising Advertising Advertising Copying 59

43(B)log

SEPTEMBER 26, 2022

Demetres challenged Zillow’s use of Advertising Agents (real estate agents) and “Zestimates.” Falsity: First, Zestimates weren’t plausibly alleged to be literally or impliedly false. The court thought that this wasn’t material, but conflated false advertising and false association (which was plausibly alleged).

Government 59

Government Law Advertising Advertising 59

43(B)log

MARCH 4, 2024

29, 2024) Previously, after a bench trial, the court found Albion liable for falsely advertising its caulk dispensing guns as “Made in the USA.” After more evidence, the court found that Albion adequately supported its unclean-hands defense—that Newborn had also made false USA origin claims—until early 2007. Newborn Bros.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

AUGUST 1, 2022

ICC develops model building codes and standards; it sued a competitor, UpCodes, for false advertising (Lanham Act, NY GBL, and common law unfair competition). A plaintiff cannot state a false advertising claim based on such a statement because, by definition, it cannot be proven false. UpCodes Inc.,

False Advertising 59

False Advertising Law Advertising Advertising 59