43(B)log

DECEMBER 7, 2023

17, 2023) Super-interesting holding that, while there’s no patent field preemption against bringing false patent marking claims under the Lanham Act, Dastar (as expansively interpreted to cover false advertising claims) does preclude such claims, possibly only because of party argument. Dismissed with leave to amend.

False Advertising 59

False Advertising Social Media Advertising Advertising 59

43(B)log

APRIL 26, 2023

The parties compete in the market for skid steer attachments and other products. Creager sells Montana post drivers (made in China) that compete with the Texas post drivers sold by IDT (advertised as made in the USA). The parties had other disputes, including accusing each other of posting false reviews of the other.

Fair Use 64

Fair Use Advertising Advertising False Advertising 64

43(B)log

NOVEMBER 6, 2023

Bluegreen sued a lot of entities, but only the marketing defendants remained in the case: their role was “to advertise timeshare exit services by promoting a legitimate process to exit timeshare contracts while protecting the customers’ credit.” In a particularly “yikes” bit, one marketing defendant 1990.

Marketing 59

Marketing Marketing False Advertising Advertising 59

43(B)log

SEPTEMBER 14, 2021

18, 2021) Doe, a real a **e (“deeply unsympathetic,” to use the court’s terms), advertised “ASU Covid Parties” on a similarly-named Instagram account and spewed a lot of bile as well as, in its first post, using ASU’s colors. The Board sued Doe for trademark infringement and related claims; Doe defaulted.

Social Media 53

Social Media False Advertising Advertising Advertising 53

43(B)log

MAY 19, 2023

WowWee’s Vice President of Brand Development & Creative Strategy, Sydney Wiseman, used her WowWee email address to create a Roblox user account and used her Roblox account to promote My Avastars dolls on social media, including videos on her TikTok account.

Copying 94

Copying False Advertising Social Media Advertising 94

Trademark and Copyright Law Blog

JANUARY 14, 2021

Advertising can take many forms, including statements about a company’s products on websites and social media platforms. 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.

Advertising 40

Advertising Advertising False Advertising Social Media 40

43(B)log

OCTOBER 11, 2022

30, 2022) Pegasystems alleged that defendants, which compete with it in the business process management (BPM) software field, engaged in false advertising and commercial disparagement in an online report that portrayed Pegasystems unfavorably. Appian disseminated the report through its sales team, social media, and other marketing.

Marketing 59

Marketing Marketing Business False Advertising 59

43(B)log

SEPTEMBER 15, 2021

They alleged that defendants copied the program and infringed the patent, as well as engaged in a smear campaign against plaintiffs in an effort to steal market share in the pediatric orthopedic industry. I’m only going to discuss the false advertising aspects. They didn’t advertise any alternative or promote a specific product.

Advertising 59

Advertising Advertising Social Media False Advertising 59

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

FEBRUARY 17, 2022

Was this commercial advertising or promotion? Elysium argued that Right of Assembly was “a marketing website for Tru Niagen for which ChromaDex pays commissions to Shelly Albaum for Tru Niagen customers referred through the website.” Thus, any false advertising claim would lie against Albaum, not [directly] against ChromaDex.

Advertising 80

Advertising Advertising False Advertising Marketing 80

LexBlog IP

AUGUST 7, 2023

The Center for Countering Digital Hate is a not for profit organization that publishes reports on among other things, hate speech and disinformation on social media. For example, it alleges that 12 posters are responsible for two thirds of the anti-vax content on social media. Are the reports advertisements?

Social Media 52

Social Media Reporting Contracts False Advertising 52

43(B)log

MAY 2, 2022

28, 2022) Chanel sued What Goes Around Comes Around (WGACA), alleging trademark infringement, false advertising, false association/endorsement, and related NY GBL claims for deceptive/unfair trade practices and false advertising. Until 2017, it also used the hashtag #WGACACHANEL in its social media posts.

False Advertising 59

False Advertising Advertising Advertising Social Media 59

43(B)log

NOVEMBER 28, 2022

2, 2022) Before the jury verdict in favor of Monster’s false advertising claim was this opinion resolving evidentiary issues. They weren’t directly asked about the phrase “Super Creatine,” whether participants had prior experiences with or opinions of Bang, or whether they had seen Vital’s advertising in the market.

False Advertising 59

False Advertising Advertising Advertising Social Media 59

Copyright Lately

MARCH 31, 2024

Video game publisher Atari Interactive has launched a copyright infringement lawsuit against State Farm, claiming that the insurer improperly appropriated artwork from Atari’s 1983 arcade game “Crystal Castles” for an advertising campaign as part of a “cynical plot” to resonate with fickle millennial and Gen Z consumers.

Copyright 78

Copyright Fair Use Social Media Artwork 78

IPilogue

DECEMBER 15, 2022

Vogue’s publishers have sued rappers Drake and 21 Savage for unauthorized use of Vogue’s trademarks and false representations in marketing their newest album, “Her Loss”. This follows Vogue’s controversial lawsuit asking a small English pub called “The Star Inn at Vogue” to change its name.

Social Media 105

Social Media False Advertising Copying Trademark 105

43(B)log

FEBRUARY 26, 2024

23, 2024) Plaintiffs alleged that defendants conspired to inflate the US News ranking of USC Rossier School of Education by submitting inaccurate or incomplete data to US News and market the resulting ranking to the public. As Plaintiffs note, if the law were otherwise, “any business that submits false information to get a certification.

Advertising 59

Advertising Advertising False Advertising Marketing 59

43(B)log

APRIL 25, 2023

21, 2023) In two opinions on the same day, the court dealt with various IP/false advertising claims brought by one litter box seller against another. Plaintiff (dba Whisker) sued defendant (dba Smarty Pear), its competitor in the market for automated, self-cleaning litter boxes. Purlife Brands, Inc., 2023 WL 3046592, No.

False Advertising 59

False Advertising Advertising Advertising Social Media 59

Technology & Marketing Law Blog

DECEMBER 14, 2022

If the clinic is falsely claiming that he is, that’s false advertising and possibly defamation. Potential irony alert: 50 Cent has taunted Diddy for getting botox … When, if ever, can a company share a photo of a customer/friend on social media without consent? So what exactly are they probative of?

Social Media 116

Social Media False Advertising Advertising Advertising 116

Technology & Marketing Law Blog

JANUARY 19, 2023

A couple of specifics: The false advertising claims don’t escape 230: “Had those third-party users refrained from posting harmful content, Plaintiffs’ claims that Defendants falsely advertised and misrepresented their applications’ safety would not be cognizable.” ICS Provider. Despite Doe v.

False Advertising 87

False Advertising Social Media Publishing Advertising 87

43(B)log

SEPTEMBER 20, 2021

3, 2021) The parties compete in the market for custom landscape design services. “[I]n Natorp’s removed all of his photos from its website shortly after he complained, but the photos allegedly remained “online at various social media outlets including Natorp’s private website, Facebook, and Pinterest.” McCleese v. Natorp’s, Inc.,

Copying 64

Copying False Advertising Social Media Advertising 64

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

43(B)log

OCTOBER 19, 2023

I’ll focus, as usual, on the false advertising bits and ignore the securities law parts. Another theory of harm came from allegations that the executive defendants and some of the promoter/influencer defendants were selling off their tokens as they promoted them, engaging in market manipulation.

Due Diligence 64

Due Diligence False Advertising Social Media Advertising 64

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

JUNE 15, 2022

19, 2022) The parties compete in the market for energy drinks. VPX (Vital) makes BANG, which now contains creatyl-l-leucine (CLL), “a novel ingredient marketed under the trademark ‘Super Creatine.’ … Defendants claim that CLL is more stable and more bioavailable than other forms of creatine.”

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

MARCH 10, 2023

Plaintiff WATL is allegedly the preeminent governing body and league for the sport of axe throwing and uses the trademark “WATL” to market and publicize the axe throwing league. First, nominative fair use permits only the “truthful use of a mark.” Toyota, 610 F.3d 3d at 1177. Use of the mark with the words “compliant,” “legal,” and “meets.

Fair Use 69

Fair Use False Advertising Social Media Advertising 69

The IPKat

JUNE 13, 2022

The non-fungible part means that it is something that has unique value based on the buyer’s sentiment and/or market dynamics. In practice, what this means is that a whole new market has been opened-up as NFTs have provided a system that has enabled the sale of digital items by transforming them into collectables, such as a tweet.

Non-Fungible Tokens 140

Non-Fungible Tokens Advertising Advertising Ownership 140

43(B)log

AUGUST 17, 2021

Facts in the light most favorable to the plaintiffs: Each of the plaintiffs has a significant number of followers on various social media platforms, ranging from greater than ten thousand to several million, and most are “considered social media influencers.” The court was guided by Electra v. 59 Murray Enterprises, Inc.,

Social Media 59

Social Media False Advertising Advertising Advertising 59

LexBlog IP

MARCH 1, 2022

Last month, as part of BakerHostetler’s “Look Back, Look Ahead: Advertising and Marketing Law in 2021 & 2022” webinar series, partners Craig A. 4: Early Opioid Medication Litigation Rulings Favor Advertisers. 5: Marketing to Minors. The following summarizes our 10 key takeaways from 2021.

Social Media 52

Social Media Privacy Advertising Advertising 52

43(B)log

SEPTEMBER 1, 2021

It submitted 14 social media posts “which it contends shows consumers and retailers attributed a particular source to Defendants’ liquor and Plaintiff’s television show.” False advertising/passing off: Same basic problems. And Mandabach failed to show actual association of the TV show with a particular source.

Social Media 93

Social Media Television False Advertising Artistic Work 93

IP and Legal Filings

SEPTEMBER 14, 2023

For example, social media has been widely discussing the impact of micro-plastics on the environment and contemplating methods to reduce its release. The objective is to mislead the consumers knowing well the marketability of this concept. Another pertinent aspect is the effect of its disposal to the environment.

Branding 79

Branding Brands Branding Trademark 79

Technology & Marketing Law Blog

JUNE 12, 2022

However, because Plaintiffs do not earn revenue from consumers who utilize services from a Martino-endorsed company, the fact that HomeAdvisor earned revenue from its ads does not demonstrate that Defendants’ advertisements caused any revenue to be diverted away from Plaintiffs.” ” Arizona Board of Regents v. 21-16525 (9th Cir.

Trademark 90

Trademark Advertising Advertising False Advertising 90

43(B)log

AUGUST 3, 2023

Also identity concealment—Worldcom to MCI; organizational misdescription—renaming, reorganization, shell companies; source obfuscation, where FB rebrands to Meta as distraction; affiliative disinformation—broader rebranding associated w social movements. TM law should facilitate disclosure or it will fall behind market.

Social Media 52

Social Media Fair Use Advertising Advertising 52

43(B)log

JULY 6, 2022

Marketing Sales Practices & Prods. Plaintiffs moved to certify four classes of purchasers of JUUL products on “theories that defendants’ marketing of JUUL was unlawfully deceptive, JUUL was unlawfully marketed to youth, and JUUL products are not fit for ordinary use.” In Re Juul Labs, Inc., I don't even have a RICO tag!

Social Media 59

Social Media Marketing Marketing Advertising 59

43(B)log

MARCH 21, 2024

Peacock alleged that Pabst violated consumer protection law by marketing “The Original Olympia Beer” as using naturally filtered, artisan water from Tumwater, Washington (a suburb of Olympia, Washington) “despite the product being brewed elsewhere in the country using lower quality water and brewing methods.” Pabst Brewing Co.,

Social Media 59

Social Media Marketing Marketing Designs 59

43(B)log

JULY 20, 2023

for deceptive advertising of dietary supplements in violation of the FTCA and the COVID-19 Consumer Protection Act. Since early 2020, Defendant Nepute and Quickwork have used several platforms, including social media, emails, and radio, to tout the purported benefits of Vitamin D and zinc and to promote Wellness Warrior supplements. ”

Government 52

Government Advertising Advertising Social Media 52

43(B)log

APRIL 26, 2022

Painaway advertised its products as “Australia’s No. 1 Joint & Muscle Spray and Cream Topical Pain Relief Brand” on: (1) its Australian website; (2) social media; and (3) Ultimate Fighting Championship (“UFC”) athletes’ clothing in matches televised in the United States. Painaway advertised its products as “Australia’s No.

Television 72

Television Social Media Advertising Advertising 72

43(B)log

FEBRUARY 17, 2022

Elysium’s expert, Sowers, tested the allegation that ChromaDex advertising deceived customers into believing that the FDA reviewed ChromaDex’s product, Tru Niagen, for efficacy. Respondents were never shown an advertising statement conveying the control message.” As a general matter, “[e]rrors in methodology.

False Advertising 59

False Advertising Advertising Advertising Social Media 59