43(B)log

FEBRUARY 23, 2024

Ferens, 2024 WL 710632, No. 21, 2024) ECRI and its CEO sued Ferens, a former ECRI employee, for various things including defamation, IIED, violations of trade secret law, and Lanham Act false advertising. The Glassdoor review was not “commercial advertising or promotion.” Schabacker v. 22-3778 (E.D.

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Advertising Advertising False Advertising Law 59

JD Supra Law

MARCH 25, 2024

Every month, Erise’s trademark attorneys review the latest developments at the U.S.

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False Advertising Trademark Advertising Advertising 70

43(B)log

APRIL 29, 2024

2024 WL 1772833, No. 23, 2024) Skipping the copyright and trade secrets part of the case. (In False advertising: Meishe pointed to statements defendants made in their copyright notice at tiktok.com, in the ByteDance Code of Conduct, in TikTok’s Intellectual Property Policy, and in TikTok’s terms of service. Tiktok Inc.,

False Advertising 59

False Advertising Intellectual Property Copyright Notice Advertising 59

43(B)log

MARCH 14, 2024

2024 WL 1051951No. 11, 2024) I have a long-running interest in Rule 68 offers of judgment, and this case involves an interaction with false advertising law! Double Diamond Distribution Ltd. Crocs, Inc., 23-cv-01790-PAB-KAS (D. The parties compete in the shoe market. Trade libel claims survived for the same reason.

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False Advertising Advertising Advertising Branding 59

Patently-O

FEBRUARY 12, 2024

TaylorMade Golf Company teed off a dispute over golf club design and filed a patent infringement lawsuit on January 31 st, 2024, in the Southern District of California against Costco and Southern California Design Company alleging infringement and false advertising relating to five of TaylorMade’s patents related to golf irons.

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False Advertising Invention Advertising Advertising 101

43(B)log

JANUARY 17, 2024

4th -, 2024 WL 164976, Nos. 16, 2024) Over a dissent in relevant part, the court revived plaintiff Ultra Bond’s Lanham Act claim relating to vehicle glass repair and replacement (VGRR). Monopoly power has many defects; here the anti-innovation face of monopoly also appears as misleading advertising.) Campfield v. Safelite Gp.,

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43(B)log

MARCH 29, 2024

2024 WL 1282368, No. 25, 2024) Gerber Good Start Gentle formula isn’t like most other infant formulas, which are made with “intact” cow’s milk protein. 2) A print magazine advertisement described GSG as the “1st Formula with FDA qualified health claim.” (3) Hasemann v. Gerber Prods. and] an allergy risk reduction benefit.”

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False Advertising Advertising Advertising Reporting 104

43(B)log

JANUARY 18, 2024

Eddie Bauer LLC, 2024 WL 177755, No. 17, 2024) This unpublished opinion has a dissent from Judge Bea indicating further disruptions in standing may be coming. But prospective injunctive relief was still possible because she alleged future harm (the failure to be able to rely on Eddie Bauer’s advertising). 21-35334 (9 th Cir.

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False Advertising Advertising Advertising Law 59

43(B)log

MARCH 6, 2024

3d -, 2024 WL 911075, No. 1, 2024) “Qoins is a financial technology company that collects funds from its customers and disburses payments to designated creditors in order to help its customers pay off their debts.” But SouthState did have standing for a false advertising claim. SouthState Bank, N.A. 1:22-CV-5020-MHC (N.D.

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43(B)log

MAY 7, 2024

3d -, CV 22-7841 (GRB)(AYS), 2024 WL 1936053 (E.D.N.Y. May 2, 2024) Lots of ice cream jokes/quotes in here, but the basic question is: “should consumers ordering pistachio ice cream at one of [Cold Stone Creamery’s] establishments expect that that product will contain actual pistachios?” Kahala Franchising, L.L.C.,

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False Advertising Advertising Advertising Branding 59

43(B)log

FEBRUARY 26, 2024

2024 WL 751006, No. 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. of Southern Cal., CV 23-3389-GW-MARx (C.D.

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Advertising Advertising False Advertising Marketing 59

43(B)log

MARCH 28, 2024

2024 WL 1285631, C.A. 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. Princeton Excess & Surplus Lines Ins. Cranston Entertainment Inc.; 21-63-JJM-PAS (D.R.I.

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43(B)log

APRIL 15, 2024

4th -, 2024 WL 1590590, No. Appellee I Dig Texas tried to appeal to consumers’ preference for American-made products; it used Creager’s photographs of its China-made Montana Post Drivers as part of its advertising. There was no showing that I Dig Texas “made any money from the advertisements bearing the copyrighted images.”

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LexBlog IP

JANUARY 31, 2024

On January 1, 2024, the copyrights in a number of recognizable works entered the public domain, including, among others, Disney’s iconic Mickey Mouse film “Steamboat Willie,” along with the specific depictions of Mickey Mouse and other characters in the film; A.

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Public Domain Trademark Copyright False Advertising 52

43(B)log

JANUARY 8, 2024

3d -, 2024 WL 64747, No. 5, 2024) Vizcarra alleged that Michaels deceptively advertises its products as discounted when in fact they are always available for at least 20% less than the purported “regular” price. Michaels argued that it “advertises current—not former—prices,” so it wasn’t covered by the former price rule.

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Advertising Advertising Marketing Marketing 59

43(B)log

MARCH 6, 2024

2024 WL 939151, No. 5, 2024) Plaintiffs sued defendant (Craftsman) for deceptive business practice claims under both the New York General Business Law (NYGBL), and the Virginia Consumer Protection Act (VCPA), as well as asserting warranty and common law claims. Montgomery v. Stanley Black & Decker, Inc., 23-735-cv (2d Cir.

Advertising 59

Advertising Advertising Business Designs 59

43(B)log

MARCH 6, 2024

2024 WL 940127, No. 5, 2024) Metroplex, a local advertising company, brought a putative class action against Meta for unfair competition. Metroplex also allegedly develops tools and systems for managing and optimizing advertising campaigns for businesses. Meta Platforms, Inc., 22-cv-1455-SMY (S.D.

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Advertising Advertising Business False Advertising 59

43(B)log

APRIL 29, 2024

Kitchen Cube LLC, 2024 WL 1829620, No. 17, 2024) Leszczynski invented a measuring cube that combines various measuring volumes into a single cubical structure. Kitchen Cube cube Leszczynski sued for (1) copyright infringement; (2) violation of Creative Commons license terms; and (3) false advertising and misrepresentation.

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False Advertising Advertising Advertising Copyright Infringement 59

43(B)log

MARCH 4, 2024

12-2999, 2024 WL 887785 (D.N.J. 29, 2024) Previously, after a bench trial, the court found Albion liable for falsely advertising its caulk dispensing guns as “Made in the USA.” Newborn Bros. Albion Engineering Co., Now it’s disgorgement time. Thus, there was continued irreparable harm. (I Newborn Brothers Co.

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43(B)log

APRIL 3, 2024

4th -, 2024 WL 1364707 (6th Cir. 2024) The court of appeals affirmed the dismissal of FedEx’s false advertising claims (under the Lanham Act and Tennessee Consumer Protection Act), albeit on somewhat different grounds. Fedex Ground Package System, Inc. Route Consultant, Inc., 23-5456, F.4th

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False Advertising Contracts Business Advertising 45

43(B)log

MARCH 8, 2024

Dr. Dennis Gross Skincare, LLC, 2024 WL 965621, No. 5, 2024) Similar California litigation at a later stage. Kandel alleged that Gross Skincare deceptively labeled and advertised its skincare products as containing collagen when, in fact, they do not. 23-cv-01967 (ER) (S.D.N.Y.

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Branding Brands Branding Advertising 59

43(B)log

FEBRUARY 16, 2024

SmileDirectClub, LLC, 2024 WL 559235, No. 12, 2024) The court denied certification to a proposed class of dentists/orthodontists over SDC’s allegedly false advertising for its plastic aligners/teledentistry services, based on difficulties identifying harm/causation. 3:19-cv-00845 (M.D.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

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 21, 2024

2024 WL 1138906, No. 15, 2024) This putative class action alleged that Amazon overcharged and “[d]eceived consumers by misrepresenting that it was selling them Digital Content when, in fact, it was really only licensing it to them[.]” In re Amazon Prime Video Litig., 2:22-cv-00401-RSM (W.D.

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Licensing Contracts Ownership Litigation 114

43(B)log

MARCH 29, 2024

2024 WL 1251284, No. 22, 2024) Stop & Shop allegedly deceptively advertised cleansing wipe products as “flushable” in violation of Mass. Stop & Shop Supermarket Co., 1:23-cv-10897-IT (D. 93A; Schotte also brought warranty, unjust enrichment, and fraud claims. The court declined to dismiss the complaint.

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Law Advertising Advertising Branding 59

43(B)log

FEBRUARY 8, 2024

2024 WL 450040, No. 6, 2024) Among other things, this opinion features very effective use of images from this case and others! However, the advertised rates don’t include the “U.S. Music Royalty Fee in addition to the advertised and promised price.” “At Subway Franchisee Advertising Fund Trust, Ltd., Carovillano v.

Music 59

Music Contracts Advertising Advertising 59

43(B)log

MAY 10, 2024

22-CV-5435 (RER) (JRC), 2024 WL 2022297 (E.D.N.Y. Abbott Laboratories, No.

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43(B)log

APRIL 15, 2024

3d - , 2024 WL 1332260, No. 28, 2024) Mekhail alleged that North’s use of a piece of hidden software on its websites (a pixel developed by Meta) surreptitiously tracked, collected, and monetized various aspects of her online activity, including sensitive medical information protected by law. North Memorial Health Care, F.Supp.3d

Privacy 59

Privacy Advertising Advertising Business 59

43(B)log

JANUARY 12, 2024

Danone Waters, 2024 WL 112843, No. 10, 2024) Plaintiffs alleged that advertising Evian as “carbon neutral” violated the consumer protection statutes of New York, Massachusetts, and California, and constituted breach of express and implied warranties, unjust enrichment, and fraud. 8717 (NSR) (S.D.N.Y.

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Marketing Marketing Advertising Advertising 69

43(B)log

JANUARY 30, 2024

2024 WL 308263, No. 26, 2024) Bush alleged that Rust-Oleum falsely labeled of its “Krud Kutter” cleaning products as “non-toxic” and “Earth friendly.” Rust-Oleum Corp., 20-cv-03268-LB (N.D.

Law 59

Law False Advertising Advertising Advertising 59

43(B)log

MARCH 21, 2024

LLC, 2024 WL 1160687, No. 18, 2024) Interesting defense-side use of surveys in this consumer protection case. Pabst Brewing Co., 2:18-cv-00568 DJC CKD (E.D.

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Social Media Marketing Marketing Designs 59

43(B)log

MARCH 29, 2024

3d -, 2024 WL 348821, No: 4:20-cv-09077-JSW (N.D. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC, F.Supp.3d

Marketing 59

Marketing Marketing False Advertising Advertising 59

43(B)log

APRIL 5, 2024

2024 WL 1356220, No. 29, 2024) The court partially grants class certification and rejects motions to exclude experts. PharmaCare U.S., 21cv137-JES (AHG) (S.D.

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Branding Brands Branding Advertising 59

43(B)log

FEBRUARY 1, 2024

3d -, 2024 WL 322050, No. 29, 2024) The court certified a class of New York consumers who were assessed multiple fees for making balance inquiries at one of defendant FCTI’s ATMs at 7-Eleven stores. 22-cv-4315 (JSR) (S.D.N.Y.

Designs 59

Designs Design False Advertising Advertising 59

43(B)log

JANUARY 5, 2024

2024 WL 24325, No. 2, 2024) Caldwell alleged that the dietary supplement product “Ultimate® Omega 2X” misled consumers into thinking that there is double the amount of omega-3 per serving than the amount of omega in the Nordic Naturals product named “Ultimate® Omega.” Caldwell v. Nordic Naturals, Inc., 23-cv-02818-EMC (N.D.

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Contracts Law Business False Advertising 59

43(B)log

MARCH 6, 2024

2024 WL 898941, No. 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. NYU Langone Health Sys. Northwell Health, Inc.,

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

FEBRUARY 22, 2024

20, 2024) According to the complaint, San Marzano tomatoes “originate[] from the town of San Marzano sul Sarno, near Naples, Italy.” Valiente v. Simpson Imports, Ltd., 23-cv-02214-AMO (N.D. San Marzano tomatoes “bear a special designation: D.O.P. Denominazione d’Origine Protetta, ‘Protected Designation of Origin’).” designation.

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Designs Design Branding Brands 69