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

False Advertising 64

False Advertising Advertising Advertising Copyright 64

43(B)log

AUGUST 25, 2022

22, 2022) The court here allows an antitrust claim to proceed based in part on allegedly false/misleading statements because they form part of the alleged anticompetitive product-hopping scheme and because the unique characteristics of the drug market make market-based responses to false advertising difficult.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

SEPTEMBER 7, 2023

4, 2023) McCracken alleged that SlimFast food products were falsely advertised as “CLINICALLY PROVEN [ – ] LOSE WEIGHT & KEEP IT OFF” on the front of their packaging. McCracken v. KSF Acquisition Corp., 2023 WL 5667869, No. 5:22-cv-01666-SB-SHK (C.D. 50 Clinical studies prove the SlimFast Plan helps you effectively lose weight."

False Advertising 59

False Advertising Advertising Advertising Settlement 59

43(B)log

JULY 21, 2023

but also narrows the issues somewhat; the larger infringement, cybersquatting, and false advertising claims can’t be resolved on summary judgment. LHB currently owns 64 domain names containing references to Taser or Axon Taser models. “ Does that sound like the claims against the domain names might be lached?

False Advertising 52

False Advertising Advertising Advertising Social Media 52

43(B)log

AUGUST 9, 2021

Here, plaintiffs alleged that TFL and Nelson had actual knowledge: they knew how the fraudulent scheme worked, that they were shipping products sold using deceptive and unfair advertising, that the ads and websites were false and misleading, and the nature of the tortious conduct being committed by Beyond Global and Doe defendants.

False Advertising 69

False Advertising Advertising Advertising Designs 69

43(B)log

SEPTEMBER 28, 2021

Entrepreneur’s desire to bring forth a claim for false advertising against a competitor in a similar market is not unusual behavior.” Along with adding a defendant, Entrepreneur might eventually be allowed to add a false advertising claim, based on facts that were allegedly discovered only during Roach’s deposition.

False Advertising 45

False Advertising Advertising Advertising Contracts 45

43(B)log

MARCH 7, 2024

Shkipin’s amended false advertising counterclaim fails again. None of HomeLight’s statements allegedly disparaged or even referred to Shkipin’s business. These causation problems also defeated his state UCL claim.

Advertising 59

Advertising Advertising False Advertising Business 59

43(B)log

JUNE 17, 2022

7, 2022) The court upheld a contempt finding based on an underlying false advertising claim. Also, a press release that discussed separate litigation in Italy about who owned VSL#3’s bacterial strains, unfairly compared VSL#3 and Visbiome referred to plaintiffs’ “aggressive efforts to sell their competing, generic probiotic product.”

False Advertising 64

False Advertising Advertising Advertising Litigation 64

43(B)log

OCTOBER 6, 2021

17, 2020) A lot of stuff here; I will ignore the non-false advertising related aspects of this mostly antitrust case. The court says the usual not-good things about false advertising’s relationship to antitrust, unfortunately: Deceptive speech usually doesn’t violate antitrust laws. 17-md-2785-DDC-TJJ (D.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

IP Tech Blog

MARCH 6, 2023

JC Penny, for example, has been hit with a class action lawsuit in the Southern District of California over its alleged advertising practice of using “false reference pricing.” The products, Carranza claims , were never sold at the listed reference price as advertised. Do the claims have merit?

False Advertising 62

False Advertising Advertising Advertising Settlement 62

43(B)log

DECEMBER 15, 2023

In Sybersound , the Ninth Circuit explained that the “nature, characteristics, and qualities” of the karaoke recording referred to things like the “quality of its audio and visual effects.” Such attributes would affect the consumer’s experience rather than the rights of third parties.”

False Advertising 45

False Advertising Advertising Advertising Intellectual Property 45

43(B)log

SEPTEMBER 16, 2021

On GitHub, the landing page was called “ONgDB – Neo4j Enterprise Fork: Graphs for Everyone,” contained numerous references to Neo4j throughout, and was very similar to that of Neo4j EE. Summary judgment granted on state and federal false advertising claims. False designation of origin: Yep.

False Advertising 64

False Advertising Advertising Advertising Licensing 64

43(B)log

SEPTEMBER 10, 2021

AB allegedly began advertising for a similar product, claiming that its load bars have “30% more Holding Power than similar Disposable Load Bars,” allegedly an admitted reference to Logistick. 15, 2021) Logistick sells disposable load bars which are used to secure cargo freight during transport.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

AUGUST 11, 2021

Although in the copyright decision, the court made reference to “rather surprising oversights,” UpCodes corrected issues when notified by ICC. UpCodes, Inc., 2021 WL 1236106, Nos. 6261 (VM) & 20 Civ. 4316 (VM) (S.D.N.Y.

False Advertising 83

False Advertising Copying Advertising Advertising 83

43(B)log

JUNE 30, 2022

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. C19-0301RAJ (W.D. Could ULC Monastery show cognizable harm?

False Advertising 59

False Advertising Advertising Advertising Business 59

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

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.

False Advertising 104

False Advertising Patent Infringement Patent Advertising 104

LexBlog IP

MARCH 6, 2023

JC Penny, for example, has been hit with a class action lawsuit in the Southern District of California over its alleged advertising practice of using “false reference pricing.” The products, Carranza claims , were never sold at the listed reference price as advertised. Do the claims have merit?

False Advertising 52

False Advertising Advertising Advertising Settlement 52

43(B)log

JANUARY 3, 2024

I’m only going to discuss the false association/false advertising bits; as to the latter, state law provides more protection than federal because of the “commercial advertising or promotion” requirement for Lanham Act false advertising. The false association/coordinate state law claims survived.

False Advertising 59

False Advertising Cease and Desist Advertising Advertising 59

43(B)log

JULY 24, 2023

But the FDA, independent reviews at scientific journals, and even some of Amgen’s own employees criticized the advertising claims as unsupported and misleading. According to Defendant’s internal memoranda, the advertising campaign was designed to “optimally position Onpro in [the] face of biosimilar competition.” Sandoz Inc.

False Advertising 92

False Advertising Advertising Advertising Marketing 92

43(B)log

APRIL 26, 2023

Creager sells Montana post drivers (made in China) that compete with the Texas post drivers sold by IDT (advertised as made in the USA). The parties had other disputes, including accusing each other of posting false reviews of the other. The parties compete in the market for skid steer attachments and other products.

Fair Use 64

Fair Use Advertising Advertising False Advertising 64

43(B)log

SEPTEMBER 21, 2021

References in Columbia’s marketing materials to “the on-campus experience” were often mere puffery “too vague to be enforced as a contract,” such as a statement in a University publication that “Columbia is an in-person kind of place.”

False Advertising 59

False Advertising Contracts Advertising Advertising 59

43(B)log

APRIL 15, 2024

The court denies a preliminary injunction on the trademark claims based on lack of likely success on the merits, but declines to dismiss either infringement or false advertising claims. Indeed, the evidence shows that, in ordinary parlance, the term “good meat” is used routinely to refer to the concept of sustainably sourced meat.

False Advertising 64

False Advertising Advertising Advertising Marketing 64

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, OK, I’m not a big false endorsement fan, but … isn’t this false endorsement? Securranty, Inc.,

Advertising 72

Advertising Advertising False Advertising Contracts 72

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.

False Advertising 59

False Advertising Advertising Advertising Designs 59

43(B)log

DECEMBER 1, 2022

OSD Audio then sued Outlaw under §512(f), and Outlaw counterclaimed for false advertising and unfair competition under the Lanham Act, copyright infringement, and trade libel. Lanham Act: The user manual did not constitute “commercial advertising or promotion.”

Advertising 64

Advertising Advertising False Advertising Copyright 64

43(B)log

AUGUST 5, 2022

Lanham Act false advertising: Were the statements “commercial advertising or promotion” even though not in a conventional ad? GDI plausibly pled commercial speech: “The statements in question … reference the Kickstarter products that never were made and seemingly promote LFI’s new line of products with Morphe.

Advertising 59

Advertising Advertising False Advertising Contracts 59

43(B)log

OCTOBER 1, 2021

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. Sending the complaint to twelve customers wasn’t “commercial advertising or promotion.”

Advertising 59

Advertising Advertising False Advertising Litigation 59

43(B)log

NOVEMBER 27, 2023

It alleged that the Philips defendants, who make such devices, engaged in false advertising about one of SoClean’s devices in order to deflect blame for the Philips devices’ design defects. Commercial advertising or promotion: A separate problem. Recall notice: Eli Lilly & Co. Roussel Corp., 2d 460 (D.N.J.

Advertising 59

Advertising Advertising Marketing Marketing 59

43(B)log

FEBRUARY 17, 2022

Was this commercial advertising or promotion? Elysium argued that Right of Assembly was “a marketing website for Tru Niagen for which ChromaDex pays commissions to Shelly Albaum for Tru Niagen customers referred through the website.” Thus, any false advertising claim would lie against Albaum, not [directly] against ChromaDex.

Advertising 80

Advertising Advertising False Advertising Marketing 80

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

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

MARCH 14, 2024

11, 2024) I have a long-running interest in Rule 68 offers of judgment, and this case involves an interaction with false advertising law! Crocs, Inc., 2024 WL 1051951No. 23-cv-01790-PAB-KAS (D. The parties compete in the shoe market. In 2006, Crocs sued now-plaintiff Double Diamond and Dawgs, its affiliate.

False Advertising 59

False Advertising Advertising Advertising Branding 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

JANUARY 18, 2022

For example, it was plausibly false/misleading to advertise that users handling one of the products “need not wear protective equipment.” Likewise, ISK adequately alleged contributory false advertising claims against PMG. Moreover, ISK alleged that none of the products are registered as pesticides with the EPA.

False Advertising 59

False Advertising Advertising Advertising Law 59

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

NOVEMBER 27, 2023

Design Gaps had in the past conducted projects for Peters Custom Homes including the design and construction of residential cabinetry in homes referred to as “Quail Hollow North” and “Lake Wylie.” And the complaint was full of references to Design Gaps’ copyrighted designs and defendants’ “copying.”

Copying 59

Copying False Advertising Designs Design 59