43(B)log

MARCH 29, 2024

The asterisk following “dermatitis” referred to this statement: “*the most common allergy in infancy. 2) A print magazine advertisement described GSG as the “1st Formula with FDA qualified health claim.” (3) Although Gerber referred to the qualified health claim determination in its ads, it didn’t use any of the approved versions.

False Advertising 104

False Advertising Advertising Advertising Reporting 104

43(B)log

AUGUST 7, 2023

3, 2023) Potentially interesting pretrial rulings in this false advertising/TM case: Goli’s motion to exclude the testimony of Dr. Jerry Wind was granted in part to preclude him from opining on the ultimate question of likely confusion or balancing the trademark infringement factors, which was for the jury. GOLO, LLC v. 20-667-RGA (D.

False Advertising 91

False Advertising Advertising Advertising Law 91

43(B)log

DECEMBER 28, 2022

17, 2022) Along with the headline-worthy nature of the claim (“ITALY’S #1 BRAND OF PASTA” plausibly falsely communicates Italian origin), the decision contains an extended discussion of judicial notice on a motion to dismiss v. come from Italian ingredients, [are] processed and manufactured in Italian factories, and then exported.”

Branding 59

Branding Brands Branding False Advertising 59

Technology & Marketing Law Blog

SEPTEMBER 18, 2023

This case involves Jim Adler, a/k/a the “Texas Hammer,” a Texas lawyer who has spent $100M+ on advertising to build his brand. First, only 94 of those references were “actual leads processed by Quintessa from its competitive bidding campaign (the campaign that bids on the Adler Marks).” Adler PC v.

Advertising 83

Advertising Advertising False Advertising Trademark 83

43(B)log

NOVEMBER 8, 2023

Malwarebytes, which allowed a false advertising claim to proceed based on one software provider’s use of the terms “malicious” and “threat” to describe its alleged competitor’s software, despite a dissent raising free speech arguments. Court can’t seem to figure out how to handle that duality between pure information and brand value.

False Advertising 75

False Advertising Advertising Advertising Trademark 75

43(B)log

JANUARY 11, 2023

9, 2023) Simpson sued MiTek for Lanham Act and state law false advertising/passing off, and for copyright infringement. MiTek allegedly uses product names that are identical or similar to Simpson product names and also uses Simpson’s product names as “reference numbers” for MiTek’s own products. Simpson Strong-Tie Co.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

MARCH 18, 2022

Fresh Bourbon allegedly falsely advertises that Fresh Bourbon is the “first black-owned bourbon distillery in Kentucky,” and makes other related false claims, which is allegedly false because it’s not a distillery, which requires both federal (TTB) and Kentucky (KABC) licenses.

False Advertising 69

False Advertising Advertising Advertising Marketing 69

43(B)log

APRIL 25, 2023

Purlife Brands, Inc., 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. Motion to dismiss denied as to trademark infringement, false designation of origin, and unfair competition claims based on the use of Smarty Pear’s hashtags.

False Advertising 59

False Advertising Advertising Advertising Social Media 59

43(B)log

SEPTEMBER 30, 2021

However, the false advertising claims failed because they didn’t identify material differences in the products. But “the delivered units do not have handles and have a different overall look and feel from the advertised units.” There were no allegations that defendants’ marketing materials referred to Strong Current in any way.

False Advertising 56

False Advertising Advertising Advertising Marketing 56

IP and Legal Filings

SEPTEMBER 14, 2023

This has led to consumers opting for brands that pledge their duty to contributing towards environmental protection by means of minimalism and sustainability. In today’s era of eco-branding, wherein trademarks are used to distinguish sustainable brands from the mainstream commercial ones, the latter engage in the practise of “greenwashing”.

Branding 79

Branding Brands Branding Trademark 79

LexBlog IP

AUGUST 7, 2023

CCDH urges brands to not advertise on sites that promote disinformation. X Corp suggests that these efforts have resulted in reduced advertising levels on Twitter. The reference in the Quinn letter to 43(a) was interesting. Based on the complaint, a 43(a)(1)(B) false advertising cause is a bit of an uphill battle.

Social Media 52

Social Media Reporting Contracts False Advertising 52

SpicyIP

OCTOBER 27, 2023

Nagging refers to persistent, repetitive, and constant requests for action, such as the ‘sign-up’ or ‘subscribe now’ box repeatedly opening on an unrelated webpage during various access steps. Example: ‘No thanks, I hate saving money’ 5. This violates copyright laws and may lead to legal actions for copyright infringement.

Intellectual Property 52

Intellectual Property False Advertising Designs Design 52

SpicyIP

APRIL 17, 2023

Offering an alternative, she argues that instead of looking at the Amendment Bill, the judicial orders and judgements by the Indian courts should be the source of reference for the upcoming Diplomatic Conference on IP, Genetic Resources and TK.

Advertising 105

Advertising Advertising Confidentiality Trademark 105

The IPKat

AUGUST 25, 2023

Only a few days ago, news was shared online that energy drink brand Alani Nutrition sued Rise UP and an influencer for copyright infringement and false advertising due to the allegedly unauthorised reproduction of one of its advertising campaigns. Its right pocket has a small star-shaped embroidery with the brand's logo.

Copyright Infringement 52

Copyright Infringement False Advertising Branding Brands 52

43(B)log

AUGUST 1, 2022

ICC develops model building codes and standards; it sued a competitor, UpCodes, for false advertising (Lanham Act, NY GBL, and common law unfair competition). When a local government adopts an ICC code, “it often does not publish the entirety of the code; rather, it codifies the code by reference and then publishes its own amendments.”

False Advertising 59

False Advertising Law Advertising Advertising 59

43(B)log

OCTOBER 4, 2021

But genuine fact issues remained on whether J-B Weld’s advertising of “Made in USA” was false and whether Illinois Tool had standing. While Illinois Tool sat on its hands, not only did J-B Weld’s sales grow, but it expanded its brands into more stores and launched new variants (like “Perma-Lock Green”). The evidence conflicts.”

False Advertising 69

False Advertising Advertising Advertising Trademark 69

IP and Legal Filings

MAY 13, 2023

Using the name or image of a celebrity for brand advertisement or promotion in the US does not always attract liability, provided the brand is not falsely misleading the public that the celebrity endorses the product. Spelling-Goldberg Prods., In Gautam Gambhir v. D.A.P & Co. &

Personality Rights 83

Personality Rights Privacy Trademark Law False Advertising 83

43(B)log

JULY 15, 2022

Likewise, while a 10% drop in donations was quantifiable in money, it could also serve as evidence of irreparable harm—that “the Spence Group’s confusing statements and advertisements have undermined the distinctiveness of the College’s trademarks.” I note that strong evidence suggests that the answer is “yes.”] Was this commercial speech?

Trademark 59

Trademark False Advertising Advertising Advertising 59

43(B)log

AUGUST 30, 2021

22, 2021) Rodriguez alleged that Olé’s La Banderita tortillas falsely advertised Mexican origin based on a Mexican flag front and center on the packaging, the phrase “El Sabor de Mexico!” the brand name “La Banderita” (“the flag”), and the Spanish phrase “Tortillas de Maiz” on the label of the Corn tortillas.

False Advertising 59

False Advertising Advertising Advertising Branding 59

43(B)log

JUNE 14, 2022

May 25, 2022) Alcon sued Lens.com for federal and state false advertising and trademark claims. The Lanham Act false advertising counterclaim was dismissed. Alcon Vision, LLC v. Lens.com, Inc., 2022 WL 1665453, No. 1:18-cv-00407-NG-RLM (E.D.N.Y.

False Advertising 72

False Advertising Trademark Advertising Advertising 72

43(B)log

AUGUST 17, 2021

Plaintiffs sued for false advertising and false endorsement under the Lanham Act, violation of their right to publicity, deceptive trade practices under New York GBL Section 349, and defamation. 2021), which considered all these claims except for false advertising. The court was guided by Electra v. 3d 233 (2d Cir.

Social Media 59

Social Media False Advertising Advertising Advertising 59

43(B)log

JANUARY 13, 2023

Ancient Brands, LLC, 2023 WL 157956, No. Vital alleged that Ancient made false and/or misleading statements on its product labels and advertising materials relating to the speed of action of several of its products and the ingredient composition of one of its products. Vital Proteins LLC v. 22 C 02265 (N.D.

Advertising 102

Advertising Advertising Marketing Marketing 102

43(B)log

FEBRUARY 24, 2023

1A and Article III standing are there, but worrisome; casualness over stare decisis does suggest courts are willing to look at things from scratch—Vintage Brands; Netchoice—everything might be up for grabs. Does “brand personality” online change what TMs are about? Does “brand personality” online change what TMs are about?

Trademark 69

Trademark False Advertising Fair Use Branding 69

SpicyIP

MARCH 10, 2024

The Plaintiff presented evidence of its long-standing use and registration of the ‘NOVA’ trademark, along with the distinct packaging featuring a blue background, a grazing cow, and the brand name. During the proceedings, the Court observed and penalised the Defendants for false advertising and contemptuous conduct.

Trademark 59

Trademark Registering Trademarks Registration False Advertising 59

Technology & Marketing Law Blog

JULY 22, 2021

In characterizing Section 230, every reference to “immunize” is changed to “‘protect.” The prior opinion contained two references to Section 230 as “broad.” Courts have rejected Section 230 defenses against claims for false advertising, deceptive trade practices, and tortious interference.

False Advertising 141

False Advertising Contracts Editing Advertising 141

43(B)log

MARCH 31, 2023

27, 2023) Eshelby sued L’Oréal over its use of “Paris” (including as part of the brand name “L’Oréal Paris”) and French-language text in ads and on the front of packages when the products aren’t made in France. L’Oréal USA, Inc., 2023 WL 2647958, 22 Civ. 1396 (AT) (S.D.N.Y.

Branding 104

Branding Brands Branding False Advertising 104

43(B)log

APRIL 25, 2023

The front label contains the brand name “Topo Chico,” the word “Margarita,” and the phrase “Hard Seltzer.” The use of “Hard Seltzer” allegedly reinforced that expectation, as “the term ‘hard’ in the context of alcohol refers to distilled spirits, i.e., ‘hard liquor’ ” like tequila. Coca-Cola Co., 2023 WL 3055196, No. alcohol by volume.

Branding 59

Branding Brands Branding False Advertising 59

43(B)log

APRIL 26, 2022

Painaway advertised its products as “Australia’s No. 1 Joint & Muscle Spray and Cream Topical Pain Relief Brand” on: (1) its Australian website; (2) social media; and (3) Ultimate Fighting Championship (“UFC”) athletes’ clothing in matches televised in the United States. The court granted summary judgment to MaxRelief.

Television 72

Television Social Media Advertising Advertising 72

43(B)log

JULY 15, 2022

Continued manufacture and sale of the Max Racks after the agreement expired was a traditional ex-franchisee situation; the other accused uses basically were failing to purge every reference to the Max Rack from the Core website and user manual even after the transition to the Freedom Rack. When they did try, they missed some references.

Advertising 59

Advertising Advertising Licensing False Advertising 59

LexBlog IP

SEPTEMBER 14, 2022

.” That same environmental information—encompassing the “E” in trending ESG—is of value to consumers who seek out and, at times, pay a premium for “green” branded products. In February 2022, the National Advertising Division (NAD), oversaw two cases concerning environmental claims.

Marketing 52

Marketing Marketing Advertising Advertising 52

43(B)log

JUNE 20, 2023

I teach that false advertising is probabilistic: if a representation is likely to deceive a substantial number of reasonable consumers, it is deceptive, even if not everyone is misled—but that conclusion is most reliable for competitor-plaintiffs, as this case shows.

False Advertising 59

False Advertising Marketing Marketing Advertising 59

43(B)log

AUGUST 3, 2023

So too w/false advertising. Advertising: false endorsement potential. Assumptions skipped over in TM/false advertising analysis.] Protecting brand investment and consumers? Evolving norms of communication and branding both have no punctuation/capitalization: lululemon. Death closes things off.

Registration 52

Registration False Advertising Advertising Advertising 52

LexBlog IP

FEBRUARY 1, 2023

VIP Products, Jack Daniel’s, the maker of the popular whiskey brand, filed a lawsuit against VIP Products, a company that sells a dog toy shaped like a whiskey barrel. Jack Daniel’s argued that the toy infringed on their trademark, as the shape of the whiskey [bottle] is closely associated with their brand. ” Id.

Trademark 52

Trademark Intellectual Property Branding Brands 52

43(B)log

FEBRUARY 3, 2024

Also no reference to cannabis, THC, or CBD. They’ve changed the design, but still claim authenticity: the authenticity is the brand. Herman Miller brings claims of unfair competition, false association, false advertising, right of publicity, TM rights including dilution, claiming designer’s name, model names, and shape of the design.

Designs 59

Designs Design Law Design Patent 59

43(B)log

JULY 20, 2023

Ford advertised its Shelby GT350 Mustang as “track ready.” “But As for the facts: The Shelby is an upgrade of the standard Mustang and, importantly here, was advertised as “an all-day track car that’s also street legal.” Track-readiness was a central theme in Ford’s Shelby advertising. Tershakovec v. Ford Motor Company, Inc.,

Advertising 52

Advertising Advertising Law False Advertising 52

43(B)log

FEBRUARY 16, 2024

Static Controls in 2012, a Lanham Act false advertising case, the Court gave us two more principles for interpreting section 43: a statutory cause of action extends only to plaintiffs whose interests “fall within the zone of interests protected by the law invoked.” If you just saw it, would you think that’s their brand?

Trademark 59

Trademark Fair Use Registration False Advertising 59

43(B)log

JUNE 27, 2023

or “A Taste of Mexico!”; (b) a Mexican flag on the front and center of the packaging; and (c) the brand name “La Banderita” (or “the flag”), a reference to the Mexican flag displayed prominently on the Products. All the accused products allegedly use: (a) the phrase “El Sabor de Mexico!” La Banderita Whole Wheat Fajita Similar.

Marketing 100

Marketing Marketing Advertising Advertising 100