43(B)log

OCTOBER 9, 2023

Lei, 2023 WL 6373073, No. 21, 2023) Deetsch alleged that he owned design patents for CPAP pillow products, which the Lei defendants infringed. Since the designs were not plainly dissimilar, infringement was plausible. Since the designs were not plainly dissimilar, infringement was plausible.

Advertising 72

Advertising Advertising Branding Brands 72

43(B)log

MARCH 22, 2023

Trademark and Unfair Competition Scholarship Roundtable 2023 The Trademark and Unfair Competition Scholarship Roundtable co-hosted by Harvard, NYU, and the University of Pennsylvania will take place in person hosted this year at NYU. The Roundtable will be held on Friday, October 6, 2023.

Trademark 78

Trademark False Advertising Advertising Advertising 78

43(B)log

JANUARY 27, 2023

3d -, 2023 WL 371035, No. 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 Inc., 1:21-12063-PBS (D.

False Advertising 59

False Advertising Advertising Advertising Designs 59

43(B)log

NOVEMBER 27, 2023

Design Gaps, Inc. Hall, 2023 WL 8103156, No. 21, 2023) Design Gaps produces custom cabinetry for high-end homes; Hall is a former employee of Design Gaps who signed a nonsolicitation/noncompete clause but went to work for a design studio that was part of Design Gaps’ main competition, Peters.

Copying 59

Copying False Advertising Designs Design 59

43(B)log

SEPTEMBER 6, 2023

Allen Interchange LLC, 2023 WL 5206884, No. 14, 2023) This opinion deals only with Allen’s counterclaims. The Toyota parts sold by Allen Interchange and Toyota bear the same part number, and according to Allen Interchange, are identical in design, function, and quality. Allen Interchange LLC, 2023 WL 5207389, No.

Marketing 59

Marketing Marketing False Advertising Advertising 59

43(B)log

OCTOBER 11, 2023

2023 WL 6318083, No. 28, 2023) Sazerac sells a malt version of its famous Southern Comfort whiskey. Plaintiff alleged that Sazerac designed this malt version to look just like the original one, misleading consumers in violation of New York laws on deceptive practices and false advertising. Del Rosario v.

False Advertising 59

False Advertising Advertising Advertising Designs 59

43(B)log

OCTOBER 11, 2023

22-cv-03119-PCP, 2023 WL 6284738, F.Supp.3d 27, 2023) HomeLight runs an online platform that matches real estate agents with homebuyers and sellers and requires any agent who accepts a referral resulting in a sale to pay 25% of their commission to HomeLight. I will only discuss the (unsuccessful) advertising-related claims.

False Advertising 45

False Advertising Advertising Advertising Law 45

43(B)log

MAY 19, 2023

2023 WL 2433970, -- F. 9, 2023) Roblox runs a “digital world where users create virtual games and experiences and connect with other users.” Roblox Corp. 22-cv-04476-SI (N.D. Users interact with the platform through virtual characters known as “Avatars.”

Copying 94

Copying False Advertising Social Media Advertising 94

43(B)log

NOVEMBER 13, 2023

2023 WL 7390842, No. 8, 2023) Imprimis sued defendants, competitors in the compounding pharmacy industry, for false advertising, trademark and copyright infringement, and related claims. It alleged that defendants falsely advertised that they’re in compliance with Section 503A of the FDCA, governing compounding.

False Advertising 71

False Advertising Advertising Advertising Government 71

43(B)log

APRIL 25, 2023

2023 WL 3046592, No. 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. 2023 WL 3049106, No. effective at eliminating viruses and bacteria was also plausibly false advertising. Automated Pet Care Prods.,

False Advertising 59

False Advertising Advertising Advertising Social Media 59

Technology & Marketing Law Blog

JANUARY 19, 2023

Despite the rhetorical moves to position the lawsuit about the defendants’ design choices, this is actually an easy case. Meanwhile, the battle is raging in the MDL, the recent lawsuits brought by school districts over teens’ social media addiction, other lawsuits, and the panoply of state bills that will be introduced in 2023.

False Advertising 86

False Advertising Social Media Publishing Advertising 86

43(B)log

SEPTEMBER 5, 2023

3d -, 2023 WL 4463246, No. 11, 2023) The parties compete in the design of buckling-restrained braces, which are structural devices that help buildings withstand seismic activity. The Design Manual also included several technical drawings of BRBs, which allegedly infringed plaintiff Core-Brace’s registered drawings.

False Advertising 59

False Advertising Law Advertising Advertising 59

43(B)log

MARCH 27, 2023

4th -, 2023 WL 2621131, No. 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. Pacira Biosciences, Inc. 22-1411 (3d Cir.

Journalism 111

Journalism False Advertising Advertising Advertising 111

SpicyIP

OCTOBER 27, 2023

On September 7, the Ministry of Consumer Affairs published the Draft Guidelines for Prevention and Regulation of Dark Patterns 2023, inviting comments from the public. False advertising and misleading representations: Dark patterns often involve misleading representations about products, services, or offers.

Intellectual Property 52

Intellectual Property False Advertising Designs Design 52

43(B)log

FEBRUARY 17, 2023

Salinas, 2023 WL 2026546, No. 15, 2023) Defendants allegedly sold non-rescue dogs as rescue dogs. Lanham Act false advertising: Gonzalez lacked statutory standing. The trier of fact would have to resolve this; there was no dispute that the cage cards were in advertising format and about the puppies for sale. “To

False Advertising 59

False Advertising Advertising Advertising Trademark 59

43(B)log

JANUARY 27, 2023

2023 WL 416080, No. False advertising: Spiralverse allegedly falsely advertised its version of the Piano Book on Amazon as “new,” despite the rebinding, residue, and front labels. Was this literally false? Steeplechase Arts & Productions, L.L.C. Wisdom Paths, Inc., 22-02031 (KM)(MAH) (D.N.J.

Derivative Work 75

Derivative Work False Advertising Advertising Advertising 75

43(B)log

JULY 3, 2023

16-6576 (KM) (MAH), 2023 WL 4200169, -- F. 27, 2023) Industria sued Latinfood for trademark and copyright infringement; Latinfood counterclaimed for tortious interference against Industria and another counterdefendant Cordialsa. Industria De Alimentos Zenu S.A.S. Latinfood U.S. T]he one showed in the application is not mine.”

False Advertising 59

False Advertising Advertising Advertising Registration 59

Technology & Marketing Law Blog

JUNE 5, 2023

” I agree 100%, and this line seems relevant to the court challenges to the age-appropriate design codes as applied to UGC publishers (and many other pending attempts to work around Section 230). ” That wasn’t the case here: “Google did nothing to make the content of the advertisement itself more unlawful.”

False Advertising 59

False Advertising Advertising Advertising Publishing 59

43(B)log

AUGUST 8, 2023

2023 WL 5000434, No. 4, 2023) Akes brought the usual California claims /unjust enrichment, alleging that she was misled by the labeling of the 2.5-ounce ounce bottle of Coppertone Sport Mineral sunscreen as “Face 50” to believe that it was “specifically designed” or “specifically formulated” “for use on the face.”

Designs 90

Designs Design Marketing Marketing 90

43(B)log

MARCH 20, 2023

Crawlspace Ninja IP LLC, 2023 WL 2533061, No. 15, 2023) When is informational material related to a for-profit company’s business commercial speech? 5:22-cv-649-LCB (N.D. Here, the court finds a YouTube video noncommercial despite some reasonably solid connections to profit-seeking.

False Advertising 60

False Advertising Advertising Advertising Marketing 60

43(B)log

MARCH 27, 2023

EDCV 22-1861 JGB (KKx), 2023 WL 2629020 (C.D. 9, 2023) Hernandez brought the usual California claims against RSC for allegedly false and misleading advertising of its electric collar products for pets under the brand name PetSafe. It is designed to get your pet’s attention, but not punish him. Hernandez v.

False Advertising 59

False Advertising Advertising Advertising Branding 59

43(B)log

JUNE 6, 2023

2, 2023) Courts generally seem more likely to find falsifiability instead of puffery when a speaker makes negative claims about rivals rather than positive claims about itself. The district court dismissed the complaint on the grounds that these designations were “non-actionable statements of opinion.” Malwarebytes, Inc., collectively.”

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

MARCH 13, 2023

2023 WL 2364736, No. 24, 2023) Hey, it’s a certified class in a vanilla case: Vizcarra alleged that Breyers Natural Vanilla Ice Cream misleadingly communicated that it contained vanilla flavor derived exclusively from the vanilla plant. Vizcarra v. Unilever U.S., 4:20-cv-02777 YGR (N.D.

False Advertising 56

False Advertising Branding Brands Branding 56

43(B)log

JANUARY 10, 2023

2023 WL 122910, No. 6, 2023) Norman sued Gerber for allegedly falsely advertising its baby food/infant formula products as “NON GMO Not Made With Genetically Engineered Ingredients” on the front of the package, and also on the back above the ingredients list. Gerber Prods. 21-cv-09940-JSW (N.D.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

MAY 3, 2023

Young Living Essential Oils, LC, 2023 WL 3185045, No. May 2, 2023) In 2020, NAD found that Young Living’s claims that its essential oils are “therapeutic-grade” and impart physical and/or mental health benefits were “unsupported.” MacNaughton v. 22-0344, -- F.4th 4th -- (2d Cir.

Law 52

Law False Advertising Advertising Advertising 52

43(B)log

NOVEMBER 27, 2023

2023 WL 8006602, MDL No. 17, 2023) Because this is MDL with lots of claims, the facts are a bit complicated. 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. 22-542 (W.D.

Advertising 59

Advertising Advertising Marketing Marketing 59

43(B)log

FEBRUARY 22, 2024

San Marzano tomatoes “bear a special designation: D.O.P. Denominazione d’Origine Protetta, ‘Protected Designation of Origin’).” designation but are labeled “San Marzano style” or “San Marzano” without the D.O.P designation. San Marzano tomatoes grown in the United States do not have the D.O.P. Benefit Corp.,

Designs 69

Designs Design Branding Brands 69

43(B)log

FEBRUARY 6, 2023

3d -, 2023 WL 1438718, No. 1, 2023) The FTC, joined by California, Colorado, Florida, Illinois, Massachusetts, and New York, sued Roomster, an internet-based room and roommate finder platform, and related individuals. NY’s laws are territorial, prohibiting deceptive acts or false advertising conduct “in this state.”

False Advertising 72

False Advertising Confidentiality Advertising Advertising 72

43(B)log

AUGUST 1, 2023

2023 WL 4850531, No. 28, 2023) Many lawsuits against “recyclable” claims have been dismissed, but not this “compostable” one. The bags also feature text disclosing that the bag is not designed for use in home compost piles. And they adequately pled deceptive acts/false advertising under N.Y. 9199-4467 Quebec Inc.,

False Advertising 40

False Advertising Advertising Advertising Designs 40

43(B)log

MAY 19, 2023

22-cv-00985-JST, 2023 WL 3370737, -- F. In another false advertising case challenging the undisclosed presence of child and slave labor in the supply chain, the Ninth Circuit rejected the existence of any duty to disclose because “the labor practices in question. In re Natera Prenatal Testing Litig.,

Advertising 52

Advertising Advertising False Advertising Law 52

43(B)log

APRIL 17, 2023

LLC, 2023 WL 2933464, No. 13, 2023) I don’t usually blog default cases because there’s usually little legal analysis; this case is an exception around the fraught area of first sale, showing unusual diligence by the court. Quincy Bioscience, LLC v. BRYK Enters., 22-cv-658-jdp (W.D. Even after default.

False Advertising 45

False Advertising Advertising Advertising Trademark 45

43(B)log

MAY 2, 2023

3d -, 2023 WL 3142311, No. 21, 2023) ExeGi sued Brookfield for state and federal false advertising/tortious interference. Its label doesn’t list the exact quantity of each bacteria species or strain designation, noting instead that its blend of bacteria is proprietary. ExeGi Pharma, LLC v. 20-CV-192-JPS (E.D.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

JULY 24, 2023

2023 WL 4681569 , No. Injury: Damages and disgorgement under the Lanham Act require injury (for false advertising, not trademark infringement, despite the same statutory language covering both; no, I am not going to stop pointing this out any time soon). Sandoz Inc. 2:22-cv-05326-RGK-MARx (C.D.

False Advertising 92

False Advertising Advertising Advertising Marketing 92

43(B)log

SEPTEMBER 6, 2023

2023 WL 5334389, No. 18, 2023) Zillow aggregates listings of real properties that are for sale or for rent. Then Zillow unveiled a two-tab design, which segregated content between tabs (or webpages) labeled as “Agent listings” and “Other listings.” REX – Real Estate Exchange, Inc. Zillow, Inc., C21-0312 TSZ (W.D.

Advertising 45

Advertising Advertising Licensing Designs 45

43(B)log

MAY 22, 2023

May 17, 2023) The court rejected Sazerac’s motion to dismiss McKay’s usual California statutory and common law claims on behalf of a putative class based on Sazerac’s labeling and marketing of mini bottles of Fireball malt beverages, which look almost the same as Fireball Whisky. Sazerac Co., 23-cv-00522-EMC (N.D.

Licensing 59

Licensing Law Branding Brands 59

SpicyIP

DECEMBER 30, 2023

As 2023 comes to an end, in line with our annual tradition, we take stock of the top IP developments that occurred this year. We have also included a list of other notable IP developments of 2023. The judgement was passed in October 2022, but was uploaded in September 2023 on the High Court’s website. A special thanks to Mr. G.

IP 124

IP Copyright Trademark Intellectual Property 124

43(B)log

APRIL 17, 2023

2023 WL 2933306, No. 13, 2023) Previous court of appeals ruling discussed here. The parties here had a clear financial arrangement designed to influence consumers to buy products from a third-party in which Defendants had a direct financial stake.” Ariix, LLC v. Nutrisearch Corp., 17CV320-LAB (DDL) (S.D. USA, LLC v.

Advertising 52

Advertising Advertising Editing Litigation 52