Unearthing the Truth: How Ambiguity Excavated a Win in False Advertising Claim
JD Supra Law
APRIL 25, 2024
Court of Appeals for the Tenth Circuit was tasked with excavating the truth behind claims of false advertising and copyright infringement.
no disgorgement under state law when false advertising wasn't shown to result in sales
43(B)log
APRIL 25, 2023
Republic alleged that HBI, its competitor in the tobacco rolling paper industry, engaged in false advertising under the Lanham Act, unfair competition, and violations of the IUDTPA. HBI counterclaimed that Republic infringed its copyrights and trade dress. There was no special verdict form.
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California Supreme Court reaffirms strict liability for false advertising in Serova
43(B)log
AUGUST 22, 2022
The statements were “commercial advertising meant to sell a product, and generally there ‘can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public.’” The First Amendment has long coexisted with no-fault false advertising laws. There was also no copyright preemption.
copying competitor's website & reviews creates (c), TM, false advertising problems
43(B)log
OCTOBER 11, 2022
Boston Suburban allegedly continued to use the “Logan Car Service” mark in online keyword advertising and in metatags, and continued to copy customer reviews from Boston Carriage’s website and publish them on online review platforms.
Using dominant competitor's part names/numbers for comparison isn't false advertising, TM infringement, or (c) infringement
43(B)log
DECEMBER 18, 2023
15, 2023) Simpson sued its competitor MiTek for using Simpson part numbers for structural connectors/fasteners for use in the construction industry in its catalogs/other promotional material; the court here, after a nonjury trial before the magistrate judge, rather comprehensively rejects its false advertising, trademark, and copyright claims. (It
seller's online arbitrage exposes it to (c) and false advertising claims
43(B)log
FEBRUARY 9, 2022
This is easier when there’s a potential copyright claim (which is not subject to §113(c), which very few people remember). She publishes photos of her products on eBay, and has registered some copyrights in the photos. She publishes photos of her products on eBay, and has registered some copyrights in the photos.
Amazon escapes liability for its Brand Registry advertising
43(B)log
OCTOBER 9, 2023
Amazon’s Brand Registry advertises “Automated Protections” that are “[p]owered by Amazon’s Machine Learning.” False advertising, Lei defendants: The complaint didn’t explain how “designed in the United States but … manufactured in China” was materially deceptive and thus didn’t meet FRCP 9(b) pleading standards.
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false advertising as a workaround when municipal codes are copied?
43(B)log
AUGUST 11, 2021
I]ts primary funding source is the sale and licensing of publications containing its copyrighted works.” Finally, UpCodes allegedly falsely claimed to be the “only source” of state amendments integrated into the model code, when in fact ICC also offers custom codes on its website. Once upon a time, this was a copyright dispute.
Announcing the Sixth Edition of Advertising & Marketing Law: Cases & Materials by Tushnet & Goldman
Technology & Marketing Law Blog
AUGUST 11, 2022
Rebecca Tushnet and I are pleased to announce the sixth edition of our casebook, Advertising & Marketing Law: Cases & Materials. We also have two online-only chapters on housing discrimination (Chapter 20) and political advertising (Chapter 21), both also freely downloadable. Chapter 2: What is an Advertisement?
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Dastar bars false advertising claim against "first of its kind" ads
43(B)log
DECEMBER 15, 2023
But “[t]he rights of a patentee or copyright holder are part of a ‘carefully crafted bargain,’ ” and for whatever reason, it didn’t bring a patent infringement claim. Vericool didn’t help its claim by stating in its papers that “[t]o vigorously defend its patent, Vericool World had to bring this claim.” Zobmondo Ent. Imagination Int’l Corp.,
TM infringement and false advertising claims related to putative open source software "fork" succeed
43(B)log
SEPTEMBER 16, 2021
Doing so removed certain legal notices identifying Neo4j Sweden as the copyright holder and licensor, and removed the Commons Clause, effectively allowing Defendants to commercially use and support ONgDB.” Summary judgment granted on state and federal false advertising claims. False designation of origin: Yep.
Calif. Addiction Clinic Can't Shake Off Copyright Suit
IP Law 360
APRIL 9, 2024
An intellectual property and false advertising feud between two rival addiction outpatient clinics in Sacramento will go on, a federal judge in California has ruled.
Seyfarth Attorneys to Present to the Association of National Advertisers’ Legal Affairs Committee
LexBlog IP
OCTOBER 5, 2023
Seyfarth attorneys Aaron Belzer, Lauren Leipold, Ken Wilton, and Renée Appel will present at the Association of National Advertisers’ Legal Affairs Committee meeting on Thursday, October 19, 2023.
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Court Downs Comparative Advertising and Copyright Claim, Follows with a Made in USA Chaser
LexBlog IP
AUGUST 15, 2023
Can one company use another’s copyrighted images in its advertisements to contrast where the two companies’ products are manufactured? And if this is generally but not always allowed, when is it okay? Read more
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using competitor's images in comparative advertising is fair use even when appearance isn't being compared
43(B)log
APRIL 26, 2023
24, 2023) “This case arises out of alleged misuse of copyrighted images, eventually leading to a dispute … that resulted in false business reviews, malicious e-mails, and mutual efforts to interfere with each other’s business.” The parties had other disputes, including accusing each other of posting false reviews of the other.
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user manuals aren't "commercial advertising or promotion" but do have thin copyright
43(B)log
DECEMBER 1, 2022
28, 2022) Outlaw lost its bid for a preliminary injunction enjoining Santos, aka OSD Audio, from selling products containing user manuals that allegedly infringed Outlaw’s copyright, falsely represented OSD Audio products’ specifications, and falsely represented that OSD Audio and Outlaw’s products are similar.
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accusing someone of patent infringement can be actionable disparagement if you know the patent's invalid
43(B)log
OCTOBER 9, 2023
million consent judgment, which defendants touted in a press release and advertised on Zinus’s website even after the court vacated the stipulated judgment. Courts have generally harmonized the Lanham Act with the Patent Act by requiring bad faith before claims about patent infringement can constitute false advertising.
Advertising injury policy's IP exclusion means ROP claims aren't covered
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.
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'American-Made' May Include Foreign Parts, 10th Circ. Says
IP Law 360
APRIL 12, 2024
A panel of the Tenth Circuit unanimously ruled Friday there's nothing legally problematic with foreign-made components being used in products advertised as "American-made," upholding a construction equipment maker's summary judgment win over its competitors' claims of false advertising, false designation of origin and copyright infringement.
Dastar bars false marking claims brought under Lanham Act (dubitante)
43(B)log
DECEMBER 7, 2023
17, 2023) Super-interesting holding that, while there’s no patent field preemption against bringing false patent marking claims under the Lanham Act, Dastar (as expansively interpreted to cover false advertising claims) does preclude such claims, possibly only because of party argument. Dismissed with leave to amend.
Trademark Considerations for Copyrighted Works in the Public Domain
LexBlog IP
JANUARY 31, 2024
In the United States, an original work of authorship fixed in a tangible medium of expression (meaning the work can be communicated in a visual or audio form) is a protectable copyright. Because copyright protection has a set term, copyrights in certain works necessarily expire each year and enter the public domain.
Dastar bars federal anticopying claims, but not state ones?
43(B)log
JANUARY 27, 2023
24, 2023) WS sued Wayfair, alleging patent infringement, Lanham Act false advertising, Massachusetts and California statutory unfair competition and Massachusetts false advertising based on alleged copying of West Elm products. Wayfair moved to dismiss the false advertising and unfair competition claims.
Peloton Buyers Lose Class Cert. Bid In False Ad Suit
IP Law 360
MAY 2, 2023
of falsely advertising an "ever-growing" library of online fitness classes when numerous classes were about to be removed due to music copyright concerns. A New York federal judge on Tuesday rejected a class certification bid in a lawsuit accusing stationary bike giant Peloton Interactive Inc.
State Farm’s Nod to Nostalgia Sparks Copyright Clash With Atari
Copyright Lately
MARCH 31, 2024
Video game publisher Atari Interactive has launched a copyright infringement lawsuit against State Farm, claiming that the insurer improperly appropriated artwork from Atari’s 1983 arcade game “Crystal Castles” for an advertising campaign as part of a “cynical plot” to resonate with fickle millennial and Gen Z consumers.
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Watch Now: Advertising Best Practices for the Generalist In-House Counsel
Trademark and Copyright Law Blog
JANUARY 14, 2021
Advertising can take many forms, including statements about a company’s products on websites and social media platforms. In this 60-minute webinar, designed exclusively for in-house counsel, you will learn how you can protect your company against legal challenges based on its advertising practices.
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Tiktok's other, smaller legal problem
43(B)log
APRIL 29, 2024
23, 2024) Skipping the copyright and trade secrets part of the case. (In The court found aspects of the copyright/§1202 claims claim insufficiently specifically pled and granted leave to amend, including to add sufficient detail to establish that the works at issue were not US works and thus exempt from the pre-suit registration requirement.
Advertising injury coverage may exist even when gravamen of underlying complaint is TM
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.
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copying/explicit references let Roblox proceed with dubious (c) claim; Lego should be watching
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.
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Peloton Can't Outrun False Ad Suit Related To Music IP Spat
IP Law 360
AUGUST 12, 2022
A New York federal judge denied Peloton's latest bid to escape a proposed class action accusing the stationary bike giant of falsely advertising an "ever-growing" library of online fitness classes when numerous classes were about to be removed due to music copyright concerns.
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Year in Review: The Briefing’s Top 3 Podcast Episodes in 2023
The IP Law Blog
DECEMBER 29, 2023
Weintraub Tobin’s Intellectual Property podcast, The Briefing , published nearly 50 episodes this year covering a variety of IP issues relating to trademark, copyright, and entertainment law. Goldsmith that Andy Warhol’s portrait of music legend Prince did not qualify as fair use under copyright law. Goldsmith The U.S.
too much complaining about copying triggers Dastar/preemption for other claims
43(B)log
NOVEMBER 27, 2023
Design Gaps brought trade secret, tortious interference, and state and federal false advertising/false designation of origin claims against defendants. Defendants moved to dismiss the Lanham Act claims as preempted by copyright.
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when can pharma experts testify about compliance with the FDCA? (also some survey stuff)
43(B)log
NOVEMBER 13, 2023
8, 2023) Imprimis sued defendants, competitors in the compounding pharmacy industry, for false advertising, trademark and copyright infringement, and related claims. It alleged that defendants falsely advertised that they’re in compliance with Section 503A of the FDCA, governing compounding. 2023 WL 7390842, No.
Year in Review: The Briefing’s Top 3 Podcast Episodes in 2023
LexBlog IP
DECEMBER 29, 2023
Weintraub Tobin’s Intellectual Property podcast, The Briefing , published nearly 50 episodes this year covering a variety of IP issues relating to trademark, copyright, and entertainment law. Goldsmith that Andy Warhol’s portrait of music legend Prince did not qualify as fair use under copyright law. Goldsmith The U.S.
1202 and Lanham Act claims can't save lawsuit against embedding photos
43(B)log
OCTOBER 31, 2022
25, 2022) Logan alleged that Facebook’s embedding tool enables third parties to infringe his copyrighted photos uploaded onto his Facebook account by embedding them to third-party websites and allowing embedding on Facebook from other websites, creating both direct and secondary liability. Meta Platforms, Inc., 2022 WL 14813836, No.
Models v. Strip Clubs and the Lanham Act
Patently-O
FEBRUARY 12, 2023
2023) involves a set of thirteen different professional models whose images were allegedly used without their permission to advertise for the Capital Cabaret, a strip club halfway between Raleigh & Durham, North Carolina. 1125(a)(1) for misrepresentation of sponsorship (False Advertising + False Association).
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Illinois court finds insurance coverage for alleged trade dress infringement
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.
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ct orders injunctive relief against misleading rewording of geographical origin claim
43(B)log
DECEMBER 8, 2022
At trial, Republic alleged that HBI engaged in false advertising under the Lanham Act, unfair competition, and violations of the IUDTPA. HBI counterclaimed that Republic infringed its copyrights and trade dress. It also rejected the Lanham Act false advertising claim, but found unfair competition and IUDTPA violations by HBI.
Inter American Convention allows claims that Lanham Act makes dubious after Abitron; but what about Article III?
43(B)log
JULY 3, 2023
27, 2023) Industria sued Latinfood for trademark and copyright infringement; Latinfood counterclaimed for tortious interference against Industria and another counterdefendant Cordialsa. Advertisements made for Latinfood Zenú products used the phrase “una deliciosa tradición,” which translates to “a delicious tradition.” Latinfood U.S.
rebinding books doesn't create derivative works but may be actionable under Lanham Act
43(B)log
JANUARY 27, 2023
Steeplechase has a copyright for the book, “Piano Book for Adult Beginners: Teach Yourself How to Play Famous Piano Songs, Read Music, Theory & Technique” and registered trademark rights in STEEPLECHASE ARTS & PRODUCTIONS for, among other things, music instruction books, including for the Piano Book.
Use of competitor's photo in comparative ads caused no (c) damage, appeals court holds
43(B)log
APRIL 15, 2024
It also affirms the conclusion that it was not literally false to claim that machinery was American-made when it was assembled in the US from materials including foreign-sourced components. There was no showing that I Dig Texas “made any money from the advertisements bearing the copyrighted images.”
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competitor's copying of photos doesn't inherently inflict competitive harm
43(B)log
SEPTEMBER 20, 2021
Each webpage that contained one of McCleese’s photos also contained Natorp’s own trademark and copyright symbols at the top and bottom. McCleese registered copyrights for his photos in 2019. Along with copyright claims, McCleese asserted Lanham Act false advertising claims.
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Update on Encyclopaedia Iranica Case
BYU Copyright Blog
APRIL 25, 2022
As detailed in our previous posts, Columbia's allegations in this litigation have centered on EIF's alleged attempts to usurp control of the prestigious Encyclopaedia Iranica project (the "Encyclopaedia") and the legacy, publication rights, trademarks, and numerous copyrights associated with it.
Measuring device (c)able under Star Athletica; ignoring Dastar, court also allows false advertising claim
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. Even though the copyright was unregistered, Leszczynski could still have one.
adult venue's insurer did not successfully exclude ads from ad injury coverage
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. The consent judgment was a lump sum and, Princeton argued, included uncovered claims; most of the images fell within the 2017-18 period.
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