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.” Defendants allegedly marketed the My Avastars dolls with a “code” that could be used in the Roblox platform. Roblox Corp. 22-cv-04476-SI (N.D.

Copying 94

Copying False Advertising Social Media Advertising 94

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. ” This is the latest entry in the confusing jurisprudence about when 230 applies to first-party marketing representations that are rendered untrue by users’ activities. ICS Provider.

False Advertising 82

False Advertising Social Media Publishing Advertising 82

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. Plaintiff (dba Whisker) sued defendant (dba Smarty Pear), its competitor in the market for automated, self-cleaning litter boxes.

False Advertising 59

False Advertising Advertising Advertising Social Media 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.”

Design 90

Design Designs Marketing Marketing 90

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

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.”

Advertising 59

Advertising Advertising False Advertising Publishing 59

43(B)log

MARCH 20, 2023

WatsonSeal Marketing LLC v. Crawlspace Ninja IP LLC, 2023 WL 2533061, No. 15, 2023) When is informational material related to a for-profit company’s business commercial speech? Church even describes LumberKote as “a fine product” that, “like everything” on the market, “is only as good as it’s installed.”

False Advertising 60

False Advertising Advertising Advertising Marketing 60

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

43(B)log

JULY 15, 2024

10, 2023) Nike sued over StockX’s use of Nike trademarks on StockX NFTs without Nike’s consent and alleged sales of counterfeit Nike sneakers despite allegedly guaranteeing that all products sold by StockX were authentic. Nike’s complaints about the stimuli were also nitpicking; stimuli must merely roughly simulate market conditions.

False Advertising 69

False Advertising Branding Brands Branding 69

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

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

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. They are: 1.

Intellectual Property 52

Intellectual Property Design Designs False Advertising 52

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

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.,

Design 69

Design Designs Branding Brands 69

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. Example 4: Nationally marketed lawn and leaf bags state ‘compostable’ on each bag. The bags also feature text disclosing that the bag is not designed for use in home compost piles.

False Advertising 40

False Advertising Advertising Advertising Designs 40

43(B)log

MAY 19, 2023

22-cv-00985-JST, 2023 WL 3370737, -- F. In other words, 82% of Panorama’s positive results for DiGeorge syndrome were false positives. In re Natera Prenatal Testing Litig., Plaintiffs failed to identify a relevant “defect” in the tests. are not physical defects that affect the central function of the chocolate products.”

Advertising 52

Advertising Advertising False Advertising Law 52

43(B)log

MAY 2, 2023

3d -, 2023 WL 3142311, No. 21, 2023) ExeGi sued Brookfield for state and federal false advertising/tortious interference. The parties compete in the market for probiotics. To the extent HPP is marketed as a medical food and deemed a medical food, it is required to be consumed under the supervision of a physician.”

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

JULY 24, 2023

2023 WL 4681569 , No. The first pegfilgrastim biosimilar hit the market in November 2018, and would ultimately be followed by five others, including Sandoz’s Ziextenzo in November 2019. These ads were based on an obseivational study Amgen conducted itself, in an effort to remain competitive with the emerging biosimilar market.

False Advertising 92

False Advertising Advertising Advertising Marketing 92

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

43(B)log

JULY 20, 2023

Nepute, 2023 WL 4623089 , No. 19, 2023) The US sued Nepute (a chiropractor) and Quickwork (a company of which he is a member/co-manager). for deceptive advertising of dietary supplements in violation of the FTCA and the COVID-19 Consumer Protection Act. 4:21-CV-437 RLW (E.D. The COVID-19 Act was enacted on December 27, 2020.

Government 52

Government Advertising Advertising Social Media 52

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

43(B)log

MARCH 20, 2023

2023 WL 2519857, SCAP-21-0000363, P.3d 15, 2023) The state sued two pharmaceutical companies for violating Hawai‘i’s Unfair or Deceptive Acts or Practices law (UDAP) by misleading the public about the safety and efficacy of their antiplatelet drug, Plavix. State ex rel. Bristol-Myers Squibb Co., 3d - (Hawai’i Mar. This one didn’t.

Law 45

Law Advertising Advertising Journalism 45

43(B)log

JANUARY 11, 2023

2023 WL 137478, No. 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.

False Advertising 59

False Advertising Advertising Advertising Reporting 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 109

IP Copyright Trademark Intellectual Property 109

43(B)log

MAY 3, 2023

2023 WL 3195941, No. May 2, 2023) Interesting discussion of the way in which the objective reasonable consumer standard allows consumers classes to bring certain probabilistic claims, where some consumers might have different interpretations, although the court ultimately denies certification because of damages/price premium issues.

Music 59

Music False Advertising Advertising Advertising 59

43(B)log

OCTOBER 24, 2023

Marshall, 2023 WL 6963661, No. 20, 2023) In 1991, Reed and defendants Marshall and Harris formed the recording group Jade, and in 1992 they signed an exclusive recording agreement with a now-defunct label, Giant. H-21-3942 (S.D. This reasoning also disposed of contributory/vicarious infringement claims against Marshall and Harris. §43(a)

False Advertising 59

False Advertising Ownership Service Mark Advertising 59

43(B)log

JANUARY 3, 2024

2023 WL 9051998, No. 28, 2023) Penn Engineering designs and manufactures various types of fasteners sold under various trademarks, and alleged that Peninsula sold identical fasteners while infringing on Penn Engineering’s marks. Penn Engineering also made false advertising claims based on Peninsula’s use of sales drawings.

False Advertising 59

False Advertising Advertising Advertising Trademark 59

43(B)log

SEPTEMBER 11, 2023

4th -, 2023 WL 5735552, No. 6, 2023) Doctrinal evolution is so fascinating! Section 43(a) reaches more broadly; the court here applies Lexmark to both false advertising and trademark claims. Despite different fonts, colors, and design elements, a reasonable jury could find enough similarity to confuse.

Advertising 69

Advertising Advertising Marketing Marketing 69

SpicyIP

APRIL 17, 2023

To Be or Not To Be (Design): Calcutta HC Sways Against Trend of Denying Design Registrations Over GUIs Image from here Can a GUI be regarded as a Design? In what follows, Rahul Bajaj sets out the key arguments of the parties and the holding of the court, along with his analysis of the judgment. 2 (Lulu Mall).

Advertising 90

Advertising Advertising Confidentiality Trademark 90

43(B)log

JULY 21, 2023

2:20-cv-01344-JAD-VCF , |2023 WL 4636917 ( D. 19, 2023) In what seems likely a missed opportunity due to insufficient investment in the defense, the court grants summary judgment against an argument that “Taser” is generic (quick quiz before reading further: what is the generic name for a Taser device?) Axon Enterprise, Inc.

False Advertising 52

False Advertising Advertising Advertising Social Media 52

43(B)log

JUNE 27, 2023

2023 WL 4162348, No. May 18, 2023) Granting reconsideration, the court reverses its previous ruling and dismisses the claims with prejudice. But she understands nuance and context, and that when making her purchasing decisions, all representations made by a seller are designed to sell. La Barbera v. Olé Mexican Foods Inc.,

Marketing 100

Marketing Marketing Advertising Advertising 100

43(B)log

JULY 20, 2023

4th -, 2023 WL 4377585, No. 7, 2023) Discussion of district court opinion. Ford advertised its Shelby GT350 Mustang as “track ready.” “But This is probably untrue as a matter of consumer psychology and marketing knowledge, and it also doesn’t seem to me to describe the full range of rebuttable presumptions that exist, either.

Advertising 52

Advertising Advertising Law False Advertising 52