43(B)log

AUGUST 27, 2021

19-62225-CIV-ALTMAN, 2021 WL 810279 (S.D. 3, 2021) Sometimes I worry that judicial writing is tending too much towards the flip as it moves away from prolixity, but this is a lovely example of how clear language can be deployed: If you want to build with plywood in the United States, you generally need a certification— called a PS 1-09 stamp.

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

FEBRUARY 9, 2022

The Sports Mall LLC, 2021 WL 6804246, No. This alleged chutzpah triggered the false advertising element of the case. “[T]he False advertising under the Lanham Act: The court identified two theories. (1) False advertising under the Lanham Act: The court identified two theories. (1) Kevorkian v.

False Advertising 59

False Advertising Advertising Advertising Copyright 59

43(B)log

SEPTEMBER 16, 2021

PureThink, LLC, 2021 WL 2483778, No. May 18, 2021) Neo4j specializes in graph database management systems. Summary judgment granted on state and federal false advertising claims. False designation of origin: Yep. Neo4j, Inc. 5:18-cv-07182-EJD (N.D. I still don’t know what that means, but ok.]

False Advertising 64

False Advertising Advertising Advertising Licensing 64

43(B)log

AUGUST 11, 2021

2021 WL 1236106, Nos. International Code Council, Inc. UpCodes, Inc., 6261 (VM) & 20 Civ. 4316 (VM) (S.D.N.Y.

False Advertising 83

False Advertising Copying Advertising Advertising 83

43(B)log

OCTOBER 29, 2021

11, 2021) A rare bankruptcy/false advertising interaction. Of relevance here, Everlog argued that the false advertising damages were nondischargeable in bankruptcy. BTL argued that summary judgment was inappropriate because the district court didn’t consider whether the false advertising was “malicious.”

False Advertising 72

False Advertising Advertising Advertising Litigation 72

43(B)log

AUGUST 26, 2021

Smash My Trash, LLC, 2021 WL 3354839, No. 2, 2021) Allied, aka Republic, “provides waste and recycling services to business and residential customers in the Kansas City metropolitan area.” This equipment is designed and constructed only to collect a customer’s ordinary waste. Allied Servs., 21-cv-00249-SRB (W.D.

False Advertising 72

False Advertising Advertising Advertising Business 72

43(B)log

DECEMBER 23, 2021

2021 WL 6049964, No. 12, 2021) After Lexmark , can a competitor bring a false association claim when the false association is with an unrelated third party? This court answers yes, though limits the effect of that by applying what looks like ordinary false advertising analysis. FireBlok IP Holdings, LLC v.

False Advertising 59

False Advertising Advertising Advertising Designs 59

43(B)log

AUGUST 25, 2021

2021 WL 930453, No. 11, 2021) Previous opinion. Plaintiff alleges that subscribers “universally understand[ ] that a product designated ‘O’ is an [over-the-counter (“OTC”) ] drug, available over-the-counter and without physician supervision.” 2021), provided further guidance, so the law of the case did not control.

False Advertising 72

False Advertising Advertising Advertising Designs 72

43(B)log

AUGUST 26, 2021

2021 WL 1253803, No. 5, 2021) The plaintiff benefits from very generous treatment of its false designation and copyright claims, in the process stripping false designation of anything other than a prohibition on copying/vitiating both Wal-Mart and Dastar. Simpson Strong-Tie Company Inc. 20-cv-06957-VKD (N.D.

Designs 64

Designs Design Copying Copyright Infringement 64

43(B)log

SEPTEMBER 20, 2021

2021 WL 2270511, No. 3, 2021) The parties compete in the market for custom landscape design services. “[I]n Along with copyright claims, McCleese asserted Lanham Act false advertising claims. McCleese v. Natorp’s, Inc., 1:20-cv-118 (S.D. The parties disagree about how and whether they were authorized to do so.

Copying 64

Copying False Advertising Social Media Advertising 64

Indiana Intellectual Property Law

MARCH 7, 2023

for trademark infringement, false advertising and patent infringement. The EMSCULPT is a non-invasive medical device designed to stimulate muscle contraction using electromagnetic energy. The Indiana Secretary of State indicates that the corporation was created in 2021.

False Advertising 52

False Advertising Contracts Advertising Advertising 52

43(B)log

AUGUST 27, 2021

5:20-CV-142-FL, 2021 WL 3284799 (E.D.N.C. 30, 2021) Dynatemp and another company sued defendants for false advertising and related claims; defendant RMS counterclaimed similarly. Notable holdings: RMS didn’t plausibly allege that plaintiffs falsely designated their goods. Dynatemp Int’l, Inc.

False Advertising 45

False Advertising Branding Brands Branding 45

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 6, 2022

BD alleged that Medline made false and misleading statements that BD had to change its original design as a result of the patent litigation, that the original was found to infringe one or more of Medline’s patents, that the original was discontinued, and that the reverted design would negatively impact BD’s ability to supply sufficient inventory.

False Advertising 59

False Advertising Designs Design Advertising 59

43(B)log

AUGUST 31, 2021

Foundation Fitness LLC, 2021 WL 2689852, No. Wahoo acknowledged that it built its products off of pre-existing technology, stating that it “based its design for the control system of the KICKR on the expired, prior art Sargeant patent.” Powerbahn, LLC v. 1:19-cv-1678-AT (N.D.

Technology 59

Technology False Advertising Invention Patent Infringement 59

43(B)log

SEPTEMBER 7, 2021

2021 WL 1534988, No. Tapestry, Inc. Chunma USA, Inc., 20-CV-0271 (JMF) (S.D.N.Y. The complaint did “narrowly” state a claim. and [the] Coach” brand.

False Advertising 59

False Advertising Registration Trademark Registering Trademarks 59

43(B)log

SEPTEMBER 16, 2021

6:21-cv-326-MC, 2021 WL 2546273 (D. 21, 2021) The parties compete to manage vacation rental properties located in Oregon. Meredith alleged that Vacasa “has embarked on a smear campaign surgically targeted at [Plaintiff’s] homeowner customers, designed to unfairly snuff out that competition.” Meredith Lodging LLC v.

Advertising 59

Advertising Advertising False Advertising Marketing 59

43(B)log

OCTOBER 7, 2021

2021 WL 518021, No. 11, 2021) ShopRite sells organic vanilla soymilk. These cases provide great evidence that false advertising law does so as well.] Shop-Rite Supermarkets, Inc., 20-CV-763 (CS) (S.D.N.Y. Plaintiffs brought the now-standard vanilla versus vanillin claims. Why disregard the survey?

False Advertising 45

False Advertising Advertising Advertising Trademark Law 45

43(B)log

MAY 12, 2022

They are: the Unfair Competition Law (UCL); the False Advertising Law (FAL); and the Consumer Legal Remedies Act (CLRA). While they often cover the same conduct in false advertising cases and are cumulative of each other, they have differences. II), 2021 WL 3878654, No. Pulaski & Middleman, LLC v. Google, Inc.,

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

FEBRUARY 9, 2022

2021 WL 6804234, No. 22, 2021) Johnson brought a claim on behalf of a putative class that Glock sold defective firearms. Glock, Inc., 3:20-cv-08807-WHO (N.D. He alleged that specific Glock guns’ chambers are “unsupported,” which can cause damage to brass casings and, sometimes, cause the guns to dangerously blow apart.

False Advertising 59

False Advertising Advertising Advertising Confidentiality 59

Technology & Marketing Law Blog

SEPTEMBER 5, 2021

Lanham Act False Advertising. Enigma claimed it was false for Malwarebytes to call its programs “malicious,” “threats,” and PUPs. Malwarebytes , the court held that such labels were subjective opinions, not verifiably false. Malwarebytes Inc, , 2021 WL 3493764 (N.D. In Asurvio v. Malwarebytes Case Library.

Blogging 119

Blogging False Advertising Law Advertising 119

43(B)log

AUGUST 10, 2021

Drone Whirl LLC, 2021 WL 3474007, No. In relevant part, the Shenzen pamphlet began: We are aware that there are a number of companies who are committing design infringements on our products. Is this legitimate, either under general advertising law, or Amazon policy? Shenzhen Tange Li’an E-Commerce Co. 1:20-CV-00738-RP (W.D.

Advertising 59

Advertising Advertising Designs Design 59

43(B)log

NOVEMBER 27, 2023

It alleged that the Philips defendants, who make such devices, engaged in false advertising about one of SoClean’s devices in order to deflect blame for the Philips devices’ design defects. Recall notice: Eli Lilly & Co. Roussel Corp., 2d 460 (D.N.J. Did alleged blame-shifting in these recall notices change the analysis?

Advertising 59

Advertising Advertising Marketing Marketing 59

43(B)log

AUGUST 25, 2021

Concussion Management, LLC, 2021 WL 978823, No. 16, 2021) ImPACT provides training and software, including a proprietary evaluation system. They are “the only software-based neurocognitive tests that have been cleared and designated … as Class II medical devices for use as an aid in the assessment and management of concussions.”

False Advertising 59

False Advertising Advertising Advertising Government 59

Technology & Marketing Law Blog

AUGUST 17, 2021

The ads “are designed to display generic terms that consumers might associate with any personal injury firm.” It’s 2021 FFS. McNeil Consultants, LLC , 2021 WL 3508713 (5th Cir. McNeil Consultants, LLC , 2021 WL 3508713 (5th Cir. Nirmel, 2021 WL 3475596 (S.D.N.Y. Case citation : Jim S. Adler, P.C.

Advertising 105

Advertising Advertising Trademark Settlement 105

43(B)log

AUGUST 24, 2021

2021 WL 764121, No. 26, 2021) Eldmann argued that Walgreens falsely marketed its Infants’ Pain & Fever product in contrast to its Children’s Pain & Fever Acetaminophen product. Walgreen Co. 5:20-cv-04805-EJD (N.D.

Designs 69

Designs Design Branding Brands 69

43(B)log

OCTOBER 4, 2021

Vining, 2021 WL 4344891, No. False advertising: This one survived: By listing LStar developments under the heading “Oak City Representative Developments,” “the proposal necessarily implies that defendant Oak City developed those properties.” LStar Development Gp., 5:20-CV-184-FL (E.D.N.C. What about injury? “[H]ere

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

MAY 2, 2022

26, 2022) This opinion resolves challenges to expert testimony in a false advertising class action under NY’s GBL challenging the advertising of Joint Juice as touting benefits of a useless product; both parties win and lose some. Premier Nutrition Corp., 2022 WL 1225031, No. 16-cv-06980-RS (N.D. Relying on TransUnion LLC v.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

LexBlog IP

NOVEMBER 17, 2021

AMUL Canada , 2021 FC 636 is the most recent example of the effectiveness of default judgment. Kaira also owns common law design marks which are displayed on the websites www.amul.com and www.amuldairy.com. First, Kaira provided evidence of the goodwill that the AMUL brand and designs have acquired globally and in Canada.

False Advertising 40

False Advertising Social Media Trademark Branding 40

43(B)log

JANUARY 13, 2022

million Dogecoin (DOGE) sweepstakes in June 2021, and who purchased or sold Dogecoins on a Coinbase exchange for a total of $100 or more between June 3, 2021 and June 10, 2021.” Opt in and then buy or sell $100 in DOGE on Coinbase by 6/10/2021 for your chance to win. To celebrate, we’re giving away $1.2

Contracts 59

Contracts Advertising Advertising Government 59

43(B)log

AUGUST 31, 2021

3d -, 2021 WL 2953241, No. 14, 2021) Plaintiffs challenged the labels on a line of CC’s pinot noirs, alleging deception about the wine’s appellation of origin in Oregon generally and three valleys in Oregon specifically, as well as the grapes’ purported coastal roots. Copper Cane, LLC, F.Supp.3d 20-cv-04068-RS (N.D.

Graphic Design 56

Graphic Design Government Designs Design 56

43(B)log

NOVEMBER 19, 2021

3d -, 2021 WL 5355958, D077984, D078186 (Ct. 17, 2021) The parties compete in developing means to administer diazepam, a drug used to treat acute repetitive seizures (ARS). Neurelis received orphan drug designation from the FDA for its Valtoco for management of ARS in 2015. Neurelis, Inc. Aquestive Therapeutics, Inc.,

Designs 56

Designs Design Patent Prosecution Art 56

43(B)log

NOVEMBER 9, 2021

Etsy.com, 2021 WL 5166568, No. 21-88 (W.D.

Law 59

Law Designs Design False Advertising 59

43(B)log

SEPTEMBER 23, 2022

The court thought that the lack of actual recycling was “extrinsic” to the product—not the product’s fault (despite false advertising’s strict liability)—while the lack of RIC designations was “intrinsic.” 2021) (citations omitted). Curtis argued that this made things worse, by suggesting that this would work.

Advertising 59

Advertising Advertising Designs Design 59

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

DECEMBER 7, 2021

3d -, 2021 WL 5768173, NO. 1, 2021) De Cortes, an 84-year old woman, worked for defendants/predecessors from 2003-2020 in their real estate business. But “[c]ommercial speech encompasses not merely direct invitations to trade, but also communications designed to advance business interests.” De Cortes v. That was pled here.

Advertising 59

Advertising Advertising Confidentiality Business 59

43(B)log

SEPTEMBER 1, 2021

2021 WL 3371938, No. 3, 2021)This MDL litigation centers on contamination—actual or threatened—of groundwater from various defendants’ use of the gasoline additive MTBE and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water. If it is used, engineering design and site operations. 6228 (VSB) (S.D.N.Y.

Advertising 59

Advertising Advertising Litigation Designs 59