Examining the Circuit Split on Preliminary Injunctions in False Advertising Post-eBay

IP Watchdog

In responding to the unprecedented COVID-19 challenges, companies around the world are rushing to capitalize on the current crisis by advertising the effectiveness of their products in containing the virus spread.

warranties aren't advertising b/c it's not plausible that anyone reads them before purchase

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22, 2022) Held: A warranty is not “commercial advertising or promotion” under the Lanham Act. Plaintiffs sued for breach of contract under Tennessee common law and false advertising in violation of the Lanham Act. (OK, advertising false advertisingPlateau Casualty Ins.

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Keyword Advertising and Trademarks

Selvam & Selvam Blog

In this day and age, internet is a powerful tool for advertising with limitless reach and keyword advertising is the most popular form of digital advertising. Google AdWords, Google’s flagship program that facilitates keyword advertising is no stranger to legal controversies.

"advertising injury" insurance exclusion doesn't exclude false advertising claims

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28, 2021) Mostly this case is about other things, but the court finds a duty to defend in the underlying false advertising case. Luxottica was sued in a class action alleging that its AccuFit system for prescription eyeglasses was falsely advertised as more accurate. Luxottica, Inc.

Crackdown on Gambling Ads Featuring Sports Stars: New Advertising Rules

IP Tech Blog

As reported in our previous article published in 2019, the Committees of Advertising Practice ( CAP ) have been focussing for some time on protecting children and young persons through their regulation of gambling advertising.

Applying Romag to false advertising cases

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A jury found that defendants had engaged in materially false or misleading advertising about the parties’ competing whale-watching-cruise business in violation of the Lanham Act, but the jury awarded $0 in actual damages. false advertising remediesHarbor Breeze Corporation v.

Serious Comparative Advertising: Broadening the Definition

SpicyIP

We’re pleased to bring you a guest post by Sangita Sharma, looking into the law around comparative advertisements in India. Serious Comparative Advertising: Broadening the Definition. It allowed the advertisement but asked the company to remove the reference to the detergent soap.

UK Regulator Issues New Guidance on In-Game Advertising

IP Tech Blog

What is the UK advertising regulator’s position on the costs of mystery items, bonus time, and levelling up? Instead, it provides a useful framework to enhance businesses’ understanding of their obligations when conducting in-game advertising.

The target keeps moving on keyword advertising

Likelihood of Confusion

Searchengineland: Eric Goldman reports that a US District Judge in Florida ordered an advertiser using a trademark term to use the negative keyword option, to ensure that they would no. The post The target keeps moving on keyword advertising appeared first on LIKELIHOOD OF CONFUSION™.

Competitive Keyword Advertising Claim Fails–Reflex Media v. Luxy

Technology & Marketing Law Blog

You can see Seeking Arrangements’ ad (highlighted) showing above Luxy’s own ad and mixed in with ads for unrelated products: The court says: Plaintiffs’ advertisement does not contain the word “Luxy” or appear to cause any more confusion than the other three advertisements.

court presumes injury from comparative false advertising for injunctive relief, not monetary

43(B)log

28, 2022) The parties compete to provide online ordinations to individuals who wish to perform marriage ceremonies and accuse each other of misconduct in advertising. Lexmark , the court held, didn’t supersede the presumption of injury for false comparative advertising.

clicking on competitor's ads isn't commercial advertising or promotion

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Defendants allegedly “sought out Motogolf’s ads and repeatedly clicked on them, causing Motogolf’s ads to disappear sooner and increasing Motogolf’s advertising budget,” and allegedly interfered with its vendor relationships by accusing them of the same behavior. false advertising

falsely advertising "proprietary" and "exclusive" material isn't actionable under Dastar

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14, 2021) Dawgs alleged that Crocs falsely marketed its shoes in violation of the Lanham Act by advertising Croslite, the foam material that Crocs shoes are made from, as “patented,” “proprietary,” and “exclusive.” dastar false advertisingCrocs, Inc. Effervescent, Inc.,

4th Circuit upholds contempt ruling in false advertising case: scrub your website and FB account!

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7, 2022) The court upheld a contempt finding based on an underlying false advertising claim. The injunction didn’t define the term, but since it was based on a Lanham Act violation, “commercial advertising or promotion” was the proper guidepost. false advertising remedies

two Zillow false advertising cases, divergent outcomes

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2, 2021) Rex sued Zillow and the National Association of Realtors for antitrust and false advertising violations. Surprisingly, the antitrust claims survive, as do false advertising claims agains Zillow. Lanham Act claim: Was this commercial advertising or promotion?

Thousands of Pirate Sites are Listed on WIPO’s Advertising Blacklist

TorrentFreak

This is why the advertising industry is seen as an ally in the fight against piracy. In the UK , hundreds of advertising agencies began banning pirate sites, and the European Union chimed in as well. Opinion Articles Advertising site blocking WIPO

dissatisfaction w/Amazon's partner program isn't TM infringement/false advertising

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False designation of origin/false advertising: Lasoff v. And it dismissed false advertising claims as “duplicative of his infringement claim.” dilution false advertising trademarkMelwani v. Amazon.com, Inc., 2022 WL 670919, NO. C21-1329RSM (W.D. 7, 2022) Melwani owns the Royal Silk trademark for “a wide variety of products.” His marks are enrolled in Amazon Brand Registry, and Royal Silk Direct maintains an authorized Royal Silk “storefront” on Amazon.com.

WEBINAR: Trademark and Advertising Basics for Cannabis Companies

Trademark and Copyright Law Blog

Business is booming for cannabis ventures, but the legal landscape for brand protection and product advertising is rife with complications that demand special consideration. Advertising best practices and what not to say. Neil Austin , Partner, Co-Chair, Advertising & Marketing Practice. The post WEBINAR: Trademark and Advertising Basics for Cannabis Companies first appeared on Trademark and Copyright Law. Trademark Webinar advertising brand Trademarks Cannabis

IFIT Beats Peloton's Advertising Trade Secrets Suit

IP Law 360

of accepting pilfered Peloton advertising materials in violation of the Defend Trade Secrets Act, canceling a jury trial that was set to begin on May 31 A Delaware federal judge Friday tossed Peloton Interactive Inc.'s s lawsuit accusing fitness platform iFIT Inc.

targeting residents of one building can be advertising or promotion

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Commercial advertising or promotion: Defendants argued that the C&D and statements to clients and prospective clients weren’t commercial speech because the statements “pertain to BIR’s legal rights under the Agreement.” De Cortes v.

Noncommercial speakers can be liable for contributory false advertising

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25, 2022) I know it probably seems sometimes like I approve of every expansive use of false advertising law, but sometimes even I find an aggressive position to go too far. Here, ExeGi sues a doctor for producing some of the materials ExeGi’s rivals use to promote themselves, and the court approves a contributory false advertising claim, reasoning that the “commercial advertising and promotion” requirement applies only to the underlying speech, not to the doctor’s speech.

advertising claim of capacities unavailable to consumers was plausibly deceptive

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They plausibly alleged, with examples, lots of horsepower claims, and plausibly alleged that an ordinary person would understand these representations to mean that a treadmill’s in-home continuous horsepower matched the “CHP” value advertised. consumer protection false advertising

two opinions send "false advertising of certification mark" claim to jury

43(B)log

The plaintiffs alleged that the stamps themselves were “a powerful form of advertising because they allow the Brazilian plywood companies to market their products as conforming to an important American safety standard.” false advertising secondary liability

advertiser class certified in case about Meta's overclaiming of "Potential Reach" of ads

43(B)log

29, 2022) The court certified a class of United States residents who paid Meta for placement of advertisements on social media platforms based on Meta’s allegedly inflated claims of ad reach resulting in artificially high prices, resulting in claims for fraudulent misrepresentation and fraudulent concealment (for damages) and under the UCL for injunctive relief. Differing advertising budgets and scope of purchases didn’t defeat typicality or adequacy. DZ Reserve v.

Contextual advertising and the right of publicity

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22, 2021) This case should be of interest to people working on contextual advertising. Common sense tells us that this is not a simple advertisement.” “It It is a work of fashion journalism that, like every fashion magazine, happens to contain advertisements.” Champion v.

10th circuit won't presume false advertising harm just from direct competition

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InterNACHI argued that ASHI’s tagline constituted Lanham Act false advertising because it portrays ASHI’s entire membership as being educated, tested, verified, and certified, even though its membership includes so-called “novice” inspectors who have yet to complete training or become certified. damages false advertising standingAmerican Society of Home Inspectors, Inc. International Ass’n of Certified Home Inspectors, F.4th -, 2022 WL 2125492, No. 21-1087 (10th Cir.

false advertising as a workaround when municipal codes are copied?

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false advertisingInternational Code Council, Inc. UpCodes, Inc., 2021 WL 1236106, Nos. 17 Civ. 6261 (VM) & 20 Civ. 4316 (VM) (S.D.N.Y.

ordinary recalls aren't commercial advertising or promotion

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Lanham Act claim: The recall was not “commercial advertising or promotion.” There was no dispute in that case about whether the notice was commercial advertising or promotion. But more important, the recall here “clearly did not constitute commercial advertising or promotion of CRF’s product but instead recalled it. false advertisingPictsweet Co. Offutt Farms Co., 2021 WL 4034222, No. 3:19-cv-00722 (M.D. Sept.

[Guest post] Parasitic advertising on UEFA Euro 2020: Italian Competition Authority imposes first sanction for ambush marketing

The IPKat

Here's what Anna Maria and Lorenzo write: Parasitic advertising on UEFA Euro 2020: Italian Competition Authority imposes first sanction for ambush marketing by Anna Maria Stein and Lorenzo Maniaci Ambush Kat By its decision No.

National Ass'n of Realtors fails to show standing in false advertising counterclaim

43(B)log

22, 2022) Part of a larger dispute; the National Association of Realtors (NAR) counterclaimed against REX for false advertising in violation of the Lanham Act. However, NAR didn’t allege that any consumers or brokers have withheld trade from NAR as a result of the advertisements.

Robinhood's newsletter isn't commercial advertising

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Jackson v. Robinhood Markets, Inc., 2021 WL 2435307, No. 21-cv-02304-LB (N.D.

aiding and abetting liability in false advertising cases

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And it is very plausible that providing assistance with advertising campaigns for clients would necessitate knowledge of the content of the advertisements and the nature of the campaign.” california false advertising secondary liabilityBonus: Civil RICO claims survive! Sihler v.

legal memo to existing customers wasn't "commercial advertising or promotion"

43(B)log

The false advertising counterclaim arose from a legal memo that IHS sent to customers who had been contacted by two people on behalf of defendant TDM: We understand that you have been contacted by Trade Data Monitor offering an equivalent service to the Global Trade Atlas. false advertising

influencers aren't advertisers' agents, materiality can be common sense, & more in supplement case

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Was this commercial advertising or promotion? Elysium argued that the website as a whole was a referral website for Tru Niagen, which advertised Tru Niagen at the top of every page. Thus, any false advertising claim would lie against Albaum, not [directly] against ChromaDex.

9th Circuit finds noncompetitor lacks statutory standing in nondisparagement false advertising case

43(B)log

2, 2022) The court of appeals upholds the rejection of ThermoLife’s false advertising claims (Lanham Act and Florida’s FDUTPA) on statutory standing grounds. false advertising standingThermoLife Int’l LLC v. BPI Sports, LLC, 2022 WL 612669, No. 21-15339 (9 th Cir.

emails to 12 customers weren't commercial advertising or promotion

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Kissler counterclaimed that these emails were commercial speech that violated the Lanham Act’s prohibition on false advertising and caused Kissler to suffer irreparable harm, including loss of business opportunities and harm to its reputation. false advertisingElias Indus.,

An Antitrust Framework for False Advertising, out now

43(B)log

Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising , 106 Iowa L. 1841 (2021) From the introduction: Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition.

Advertising injury coverage may exist even when gravamen of underlying complaint is TM

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5, 2022) The court finds that, contrary to the district court’s holding, at least some of the underlying lawsuit’s allegations claimed that Vitamin Energy made disparaging statements about 5-hour Energy, thus triggering the insurer’s duty to defend under its “advertising injury” policy.

individualized smear campaign wasn't plausibly commercial advertising or promotion

43(B)log

The court found that the alleged statements weren’t “commercial advertising” covered by the Lanham Act. false advertisingMeredith Lodging LLC v. Vacasa LLC, No. 6:21-cv-326-MC, 2021 WL 2546273 (D. 21, 2021) The parties compete to manage vacation rental properties located in Oregon.

LinkedIn posts weren't commercial advertising or promotion for pediatric orthopedics

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I’m only going to discuss the false advertising aspects. Lanham Act claim: Were these alleged statements commercial advertising or promotion? Taken together, the complaint didn’t plausibly allege commercial advertising or promotion. false advertisingOrthopediatrics Corp.