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.

False Advertising 69

False Advertising Advertising Advertising Designs 69

43(B)log

MAY 19, 2023

Defendants allegedly marketed the My Avastars dolls with a “code” that could be used in the Roblox platform. Looking at the side by side pictures in the complaint, this is a bit hard to swallow, but the evidence of copying/references to Roblox clearly bleed over from the TM side.

Copying 94

Copying False Advertising Social Media Advertising 94

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

OCTOBER 6, 2021

In re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices & Antitrust Litig., 17, 2020) A lot of stuff here; I will ignore the non-false advertising related aspects of this mostly antitrust case. Sanofi argued that none of its advertisements or promotional materials made any of these assertions.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

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

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

NOVEMBER 27, 2023

Marketing, Sales Practices & Products Liab. SoClean is a dominant player in the market for medical devices that sanitize continuous positive airway pressure machines (CPAPs), which treat sleep apnea and respiratory conditions. And, they continued, SoClean was illegally marketing its devices. In re SoClean, Inc., 22-542 (W.D.

Advertising 59

Advertising Advertising Marketing Marketing 59

43(B)log

SEPTEMBER 30, 2021

Pandora Marketing, LLC, 2021 WL 1573073, CV 20-5486 DSF (ADSx) (C.D. Here, Diamond sued both the marketers who seek exit clients and also the lawyers who worked with them. Regardless of which standard applied, Diamond successfully alleged contributory false advertising. Collection Development, LLC v.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

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 116

Blogging Law Contracts Cease and Desist 116

43(B)log

MARCH 14, 2024

11, 2024) I have a long-running interest in Rule 68 offers of judgment, and this case involves an interaction with false advertising law! The parties compete in the shoe market. Crocs, Inc., 2024 WL 1051951No. 23-cv-01790-PAB-KAS (D. In 2006, Crocs sued now-plaintiff Double Diamond and Dawgs, its affiliate.

False Advertising 59

False Advertising Advertising Advertising Branding 59

43(B)log

JANUARY 18, 2022

12, 2022) The parties compete in the market for wood protection products. 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).

False Advertising 59

False Advertising Advertising Advertising Law 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

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

43(B)log

MARCH 18, 2022

Fresh Bourbon allegedly falsely advertises that Fresh Bourbon is the “first black-owned bourbon distillery in Kentucky,” and makes other related false claims, which is allegedly false because it’s not a distillery, which requires both federal (TTB) and Kentucky (KABC) licenses. POM Wonderful LLC v. Coca-Cola Co.,

False Advertising 69

False Advertising Advertising Advertising Marketing 69

43(B)log

DECEMBER 1, 2022

28, 2022) Outlaw lost its bid for a preliminary injunction enjoining Santos, aka OSD Audio, from selling products containing user manuals that allegedly infringed Outlaw’s copyright, falsely represented OSD Audio products’ specifications, and falsely represented that OSD Audio and Outlaw’s products are similar. Prager Univ.

Advertising 64

Advertising Advertising False Advertising Copyright 64

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. Rather, the database itself is Defendant’s product.”

False Advertising 72

False Advertising Advertising Advertising Designs 72

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. Automated Pet Care Prods., Purlife Brands, Inc.,

False Advertising 59

False Advertising Advertising Advertising Social Media 59

Technology & Marketing Law Blog

AUGUST 30, 2023

Nursing CE Central” is a descriptive mark with “a weak secondary meaning… the plaintiff makes no meaningful showing that the public, or even those in the market in which it competes, readily recognizes its name.” ” Marketing channel. Allied Modular * Griper’s Keyword Ads May Constitute False Advertising (Huh?)–LoanStreet

Advertising 85

Advertising Advertising False Advertising Trademark 85

43(B)log

AUGUST 26, 2022

24, 2022) This seems like a silly result to me, shifting the burden to comparative advertisers, but it's often much harder to get summary judgment in a trademark case than in comparable cases. The parties compete in the industrial fastener market. Why would the relevant consumers think that?

False Advertising 59

False Advertising Advertising Advertising Trademark 59

43(B)log

SEPTEMBER 14, 2021

May 28, 2021) The parties “compete in the at-home fitness market and offer products that allow consumers to attend live and on-demand fitness classes from home.” I’m only addressing ICON’s counterclaims for false advertising, not the patent part of the ruling. We make a tablet computer better than apple.

Music 59

Music False Advertising Advertising Advertising 59

43(B)log

MARCH 20, 2023

WatsonSeal Marketing LLC v. 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

The IPKat

MARCH 7, 2024

Setting aside copyright implications, the authors managed to succinctly encapsulate the entire issue of upcycling in the following 49 words: Under current IP rules, upcycling could constitute trademark infringement, trademark dilution, tarnishment, false advertising, and unfair competition.

Intellectual Property 57

Intellectual Property False Advertising Editing Settlement 57

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.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

JANUARY 27, 2023

That supplier worked with a foreign supplier to mimic the Stiles Razor, using “photographs and physical samples of the Stiles razor as references.” It accepted a proposal from another supplier that made a lot of stuff for it, at a cost and price point similar to the Stiles Razor. The remaining design patent claims also failed.

False Advertising 59

False Advertising Design Patent Designs Design 59

Technology & Marketing Law Blog

SEPTEMBER 18, 2023

First, only 94 of those references were “actual leads processed by Quintessa from its competitive bidding campaign (the campaign that bids on the Adler Marks).” There, the court similarly whittled down the number of references in the call logs for various reasons and also used a potentially dubious denominator.]

Advertising 81

Advertising Advertising False Advertising Trademark 81

43(B)log

FEBRUARY 17, 2022

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. It was also first to market.)

Advertising 80

Advertising Advertising False Advertising Marketing 80

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. After AT&T sued, T-Mobile changed the website by including “senior” or “55+” before every reference to a “discount.”) AT&T Mobility LLC v. T-Mobile USA Inc.,

False Advertising 59

False Advertising Advertising Advertising Marketing 59

IP and Legal Filings

SEPTEMBER 14, 2023

The term refers to the usage of aspects of environmental protection in their trademarks and logos, overstating their commitment towards the cause, as a means of deceiving people into purchasing their products and services. The objective is to mislead the consumers knowing well the marketability of this concept.

Branding 76

Branding Brands Branding Trademark 76

43(B)log

JULY 5, 2023

The court here addressed only the theory that the plaintiff wouldn’t have purchased at the price that she actually paid had she known the truth, not other theories of injury (such as that the overall market price was inflated by the even higher reference prices). “[P]laintiff

False Advertising 72

False Advertising Advertising Advertising Marketing 72

43(B)log

OCTOBER 12, 2021

In the false advertising context, a claim lacks substantiation when it is premised on the absence of evidence or inconclusive evidence; a claim is provably false when evidence contradicts or conflicts with the claim.” Some tidbits: Labrada argues that Woodard was bringing a prohibited “lack of substantiation” claim. “In

False Advertising 45

False Advertising Advertising Advertising Marketing 45

Technology & Marketing Law Blog

JUNE 18, 2023

And then…the Ninth Circuit got the case again… The Majority Opinion After the Supreme Court cert denial, the district court ruled that Malwarebytes’ “malicious” and “threat” classifications were “non-actionable statements of opinion” and thus could not support a Lanham Act false advertising claim.

Blogging 86

Blogging False Advertising Litigation Marketing 86

43(B)log

AUGUST 18, 2021

It alleged that defendants unlawfully conspired to restrain trade in violation of the Sherman Act and that NABP engaged in false advertising in violation of the Lanham Act. Second, they therefore referred to specific products. pharmacy” Verified Websites program, and its Internet Drug Outlet Identification Program.

False Advertising 72

False Advertising Blogging Marketing Marketing 72

43(B)log

JUNE 22, 2022

Plaintiffs sued for breach of contract under Tennessee common law and false advertising in violation of the Lanham Act. (OK, OK, I’m not a big false endorsement fan, but … isn’t this false endorsement? Plaintiffs terminated an agreement to insure Securranty Inc.’s Insert your own insurance-related pun.)

Advertising 72

Advertising Advertising False Advertising Contracts 72

Technology & Marketing Law Blog

DECEMBER 14, 2022

But even if the Court afforded the “thanks” portion of the caption no promotional value, the remainder clearly promotes the Defendants by referring to MedSpa as “the number one med spa” and associating it with a “#celeb” and “#vip.”. If the clinic is falsely claiming that he is, that’s false advertising and possibly defamation.

Social Media 115

Social Media False Advertising Advertising Advertising 115

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 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

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