43(B)log

JUNE 26, 2023

lawsuits against clubs for advertising them with images of models without those models’ consent. The relevant policy provides coverage for bodily injury, property injury, and advertising injury, subject to certain conditions and exclusions. Covered personal/advertising injury included d.

Advertising 72

Advertising Advertising False Advertising Intellectual Property 72

43(B)log

JANUARY 3, 2024

CCM counterclaimed for abuse of process and for violations of the Lanham Act and related state laws; one ex-employee also brought counterclaims against loanDepot for breach of contract and breach of the implied covenant of good faith and fair dealing. The false association/coordinate state law claims survived. Ankura Consulting Grp.,

False Advertising 59

False Advertising Cease and Desist Advertising Advertising 59

43(B)log

SEPTEMBER 14, 2021

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.

Advertising 59

Advertising Advertising False Advertising Contracts 59

43(B)log

JUNE 22, 2022

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, I’m not a big false endorsement fan, but … isn’t this false endorsement? Shouldn’t it be?)

Advertising 72

Advertising Advertising False Advertising Contracts 72

43(B)log

AUGUST 16, 2021

11, 2021) Another timeshare versus timeshare exit false advertising case. Marketing Defendants allegedly falsely advertise timeshare exit services by promoting a legitimate process to exit timeshare contracts. First, the court rejected the argument that Rule 9(b) applied to the false advertising claims.

False Advertising 72

False Advertising Advertising Advertising Contracts 72

43(B)log

AUGUST 5, 2022

4, 2022) Frequent IP claimant Lisa Frank is in court this time over a failed deal with a vegan cosmetics company, whose contract aspects I will ignore. Lanham Act false advertising: Were the statements “commercial advertising or promotion” even though not in a conventional ad? CV-21-00228-TUC-SHR, 2022 WL 3098042 (D.

Advertising 59

Advertising Advertising False Advertising Contracts 59

43(B)log

SEPTEMBER 30, 2021

The lawyer defendants allegedly interfered with the timeshare contracts by (1) participating in the marketing defendants’ false and misleading advertising; (2) encouraging or directing the nonpayment of fees owed to Diamond; and (3) keeping the owners in the dark regarding the adverse financial consequences resulting from the nonpayment of fees.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

MARCH 23, 2022

Motogolf bought online ads on a pay-per-click contract “wherein ads would stop appearing to others if they were clicked a certain number of times in a given period.” Intentional interference with contract went because Motogolf had not identified any specific vendor that the defendants allegedly interfered with.

Advertising 59

Advertising Advertising False Advertising Contracts 59

43(B)log

JANUARY 6, 2022

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.

Advertising 72

Advertising Advertising False Advertising Intellectual Property 72

43(B)log

MAY 19, 2023

Roblox sued for copyright infringement, false advertising, trademark infringement, false association and false designation of origin, trade dress infringement, intentional interference with contractual relations, breach of contract, and false advertising and unfair competition under California law.

Copying 94

Copying False Advertising Social Media Advertising 94

43(B)log

SEPTEMBER 3, 2021

25, 2021) Unlike the education cases so far, this pandemic case sustains both consumer protection and contract claims. Alterra Mountain Co., 2021 WL 2633326, No. 20-cv-01057-RM-SKC (D. Plaintiffs purchased Ikon ski passes for the 2019-20 ski season but, due to the COVID-19 pandemic, Defendants closed their ski resorts on March 15, 2020.”

Contracts 59

Contracts Advertising Advertising Licensing 59

43(B)log

SEPTEMBER 16, 2021

The court found that the alleged statements weren’t “commercial advertising” covered by the Lanham Act. It “began a campaign to systematically contact and try to poach business from Homeowners under exclusive contract with [Plaintiff]. The question was whether the alleged misrepresentations were “sufficiently disseminated.”

Advertising 59

Advertising Advertising False Advertising Marketing 59

43(B)log

MARCH 28, 2024

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. Defendants counterclaimed for payment and damages for breach of contract and bad faith.

Advertising 64

Advertising Advertising Settlement Contracts 64

43(B)log

FEBRUARY 3, 2024

Mary Katherine Amerine, Reasonably Careless Consumers in TM & False Advertising How do courts treat consumers in TM and false advertising cases? False advertising uses v different framework: consider the challenged ad as a whole, including disclaimers and qualifying language. Beer Nuts, Bulls’ Eye v.

False Advertising 49

False Advertising Contracts Branding Brands 49

43(B)log

MARCH 6, 2024

The court mostly denied Qoins’ motion to dismiss the resulting claims, including breach of contract and libel. But SouthState did have standing for a false advertising claim. Were the Qoins statements made in commercial advertising or promotion?

False Advertising 45

False Advertising Advertising Advertising Business 45

43(B)log

JULY 19, 2023

13, 2023) Winder, a generic pharma manufacturer, sought insurance coverage for a false advertising lawsuit. Winder argued that Concordia’s complaint alleged a “personal and advertising injury” because it included allegations that Winder copied Concordia’s DONNATAL label inserts. Concordia’s labels.

Copying 40

Copying False Advertising Advertising Advertising 40

43(B)log

SEPTEMBER 6, 2023

Route sued for breach of contract, commercial disparagement and defamation per se, intentional tortious interference with contractual relations, false advertising, and contributory trademark infringement. The breach of contract claim survived. Heuberger was a Route customer who then launched a competitor, Navidium.

False Advertising 45

False Advertising Contracts Advertising Advertising 45

IP Watchdog

JULY 25, 2023

The laundry list of accusations also included trademark dilution, false advertising, common law unjust enrichment, common law tortious interference with contract, and breach of settlement agreement.

False Advertising 40

False Advertising Settlement Contracts Advertising 40

IP Law 360

AUGUST 26, 2022

stole contracted shelf space and trade secrets from its rival Monster Energy Co. while falsely touting its Bang energy drink's "super creatine" ingredient that is not actually creatine, a Monster attorney told a California federal jury Friday during opening statements in its false advertising suit against Vital.

False Advertising 40

False Advertising Contracts Advertising Advertising 40

43(B)log

AUGUST 16, 2021

It does so at the Rose Bowl Stadium under three contracts with Pasadena, including a Master License Agreement, Trademark Agreement, and Trademark Consent Agreement. This also got rid of the breach of contract claim, which was based on the alleged trademark infringement and false advertising.

Fair Use 94

Fair Use False Advertising Intellectual Property Ownership 94

43(B)log

FEBRUARY 7, 2022

28, 2022) Wound Care is a Medicare-enrolled supplier of surgical wound dressings to patients in nursing homes and other long-term care facilities nationwide under nonexclusive agreements; mostly facilities enter supply contracts with Wound Care on behalf of their patients under an assignment of benefits issued to the facilities by the patients.

Advertising 59

Advertising Advertising False Advertising Contracts 59

43(B)log

OCTOBER 12, 2022

Litigation ensued, with lots of claims, including the Lanham Act claims on which I will focus, though breach of contract claims were prominent and survived a motion to dismiss. The Lanham Act claims were styled as false association, “false association with celebrity status,” false designation of origin, and false advertising.

False Advertising 59

False Advertising Advertising Advertising Ownership 59

Indiana Intellectual Property Law

MARCH 7, 2023

for trademark infringement, false advertising and patent infringement. The EMSCULPT is a non-invasive medical device designed to stimulate muscle contraction using electromagnetic energy. Indianapolis, Indiana –The Plaintiff, BTL Industries, Inc. filed suit against Plaintiff JV Medical Supplies, Inc.

False Advertising 52

False Advertising Contracts Advertising Advertising 52

43(B)log

APRIL 26, 2022

Meta’s Ads Manager displays a “Potential Reach” for an ad after advertisers select their targeting and placement criteria; the default for people in the United States aged 18 and up was over 200 million people, revised as demographic targeting criteria are selected. The court disagreed. This was enough for reliance for UCL standing purposes.

Advertising 66

Advertising Advertising Social Media Contracts 66

43(B)log

OCTOBER 26, 2021

20, 2021) In this timeshare exit false advertising litigation, the court excludes Wyndham’s expert. Timeshare exit entities like defendant TET used “online advertising and oral sales pitches to timeshare owners to convince them to sign up for TET’s service.” Sussman, 2021 WL 4948099, No. 6:18-cv-2171-GAP-DCI (M.D.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

FEBRUARY 4, 2022

False advertising: Plaintiffs didn’t allege that Nobelle altered the merchandise in any way; “instead, the false statement arises from implication, from the fact that Nobelle is selling products that are not theirs to sell and, in the case of ‘The Line’ items, products it does not have the authority to sell.”

False Advertising 83

False Advertising Advertising Advertising Designs 83

43(B)log

AUGUST 20, 2021

Several entities, including Red Oak Sourcing, a pharmaceutical buying agent that negotiates contracts for the purchase of generic drug products on behalf of Cardinal and CVS, and AmerisourceBergen, subsequently terminated contracts or contractual negotiations with Defendants.” This was the basis of the counterclaims.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

NOVEMBER 19, 2021

Plaintiff attempted to plead that a small number of calls to people contracting with it constituted “commercial advertising or promotion,” but the court still didn’t buy it. The parties compete to manage vacation rental properties located in Oregon, and plaintiff alleged a smear campaign against it.

Advertising 59

Advertising Advertising Marketing Marketing 59

43(B)log

DECEMBER 16, 2022

15, 2022) The court of appeals reversed summary judgment in favor of an insurer, and ordered partial summary judgment for the insured, on the duty to defend in underlying litigation based on advertising injury coverage for trade dress infringement (depicting allegedly infringing products) in the insured’s advertising.

Advertising 59

Advertising Advertising False Advertising Intellectual Property 59

IP Law 360

OCTOBER 26, 2021

Timeshare company Bluegreen Vacation said Tuesday that it inked a confidential settlement with certain timeshare exit companies that resolves claims that the companies are falsely advertising their services to help release consumers from their binding timeshare contracts in a "timeshare exit scheme."

False Advertising 40

False Advertising Confidentiality Settlement Contracts 40

43(B)log

NOVEMBER 28, 2022

2, 2022) Before the jury verdict in favor of Monster’s false advertising claim was this opinion resolving evidentiary issues. They weren’t directly asked about the phrase “Super Creatine,” whether participants had prior experiences with or opinions of Bang, or whether they had seen Vital’s advertising in the market.

False Advertising 59

False Advertising Advertising Advertising Social Media 59

43(B)log

AUGUST 25, 2022

The false advertising parts: Jeong alleged that Nexo advertised to consumers that it does not own users’ collateral (e.g., The court now found the breach of contract claim sufficiently pled. This allegedly breached Nexo’s duty of good faith and fair dealing and constituted a violation of California’s UCL.

False Advertising 59

False Advertising Ownership Advertising Advertising 59

IP Law 360

SEPTEMBER 28, 2021

A Florida federal judge has largely handed a win to an attorney sued by Wyndham Vacation for his part in a purported "timeshare exit" scheme, tossing the company's claims that the lawyer engaged in false advertising while persuading owners to illegally default on their contracts.

False Advertising 40

False Advertising Contracts Advertising Advertising 40

43(B)log

APRIL 29, 2024

It advertised “This device was one of the most popular items on a popular 3D printing website with over 20,000 unique downloads” on its website, at a time when Leszczynski’s Thingiverse page displayed that his Cube had been downloaded 20,000 times. The breach of contract claim survived. False advertising: Only ok against Kitchen Cube.

False Advertising 59

False Advertising Advertising Advertising Copyright Infringement 59

43(B)log

JUNE 15, 2022

Monster alleged that VPX falsely advertised Super Creatine as a source of creatine providing numerous physical and mental benefits, advertising that BANG can improve brain function, has anti-depressive effects, and helps build muscle. VPX also allegedly advertised Super Creatine as providing the health benefits of “creatine.”

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JUNE 16, 2022

Defendants NGT and NGE advertised an ability to help customers terminate their timeshare contract or ownership; other defendants were part of the exit process. As detailed below, none of the advertising specifically mentioned Diamond, nor did it direct, instruct nor encourage consumers to stop paying on their timeshare obligations.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

FEBRUARY 21, 2022

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. They needed to file an amended complaint specifying when they gave pre-suit notice, though.

Advertising 59

Advertising Advertising Contracts Law 59