43(B)log

MARCH 29, 2024

The asterisk following “dermatitis” referred to this statement: “*the most common allergy in infancy. Plaintiffs alleged that these ads were false and misleading because there was no scientific evidence supporting the claim that GSG reduced the risk of developing certain allergies or atopic dermatitis.

False Advertising 104

False Advertising Advertising Advertising Reporting 104

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. Plaintiff (dba Whisker) sued defendant (dba Smarty Pear), its competitor in the market for automated, self-cleaning litter boxes. Purlife Brands, Inc.,

False Advertising 59

False Advertising Advertising Advertising Social Media 59

43(B)log

JUNE 10, 2024

5, 2024) Abbott Laboratories’s Glucerna line of powders and shakes are marketed as scientifically designed for people with diabetes to help manage blood sugar. The challenged language includes “to help manage blood sugar,” “#1 doctor recommended brand,” and “scientifically designed for people with diabetes.” Prescott v.

Designs 59

Designs Design Branding Brands 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).” LoanStreet v.

Advertising 82

Advertising Advertising False Advertising Trademark 82

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. It also, allegedly, obtained access to analytical tools from Brandwatch , a market intelligence consultant. As an aside, there is no Lanham Act 43(a) cause.

Social Media 52

Social Media Reporting Contracts False Advertising 52

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

SpicyIP

OCTOBER 27, 2023

False urgency is a marketing tactic that creates a false sense of scarcity to pressure consumers into making a purchase, often resulting in dark patterns, limited stock, and unexpected delivery. The DoCA had illustrated 10 practices as dark patterns. They are: 1. Example: ‘No thanks, I hate saving money’ 5.

Intellectual Property 52

Intellectual Property False Advertising Designs Design 52

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. In addition, Alcon developed U.S.-only

False Advertising 72

False Advertising Trademark Advertising Advertising 72

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

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

LexBlog IP

SEPTEMBER 14, 2022

Securities and Exchange Commission Allison Herren Lee observed that “climate risks and sustainability are critical issues for the investing public and our capital markets.” In February 2022, the National Advertising Division (NAD), oversaw two cases concerning environmental claims. sustainable). million in penalties.

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

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

43(B)log

AUGUST 3, 2023

So too w/false advertising. Assumptions skipped over in TM/false advertising analysis.] Protecting brand investment and consumers? Relevant consumer: perceptions can determine commercial strength but the inputs are often the same as for conceptual strength—dictionaries w/lower-case references.

Registration 52

Registration False Advertising Advertising Advertising 52

43(B)log

AUGUST 17, 2021

sparkling margarita" "sparkling classic cocktails" (mojito, cosmo) "Spritz": sangria, rosé The plaintiffs also alleged that the misleadingness was enhanced by the market context. Defendants argued that federal regulations allowed it to use “a cocktail name as a brand name or fanciful name.” What about the full context of the packaging?

Marketing 80

Marketing Marketing Branding Brands 80

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

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

OCTOBER 6, 2021

American Girl Brands, LLC, 2021 WL 510729, No. American Girl applied for trademarks on a space-themed doll named Luciana Vega, which it began marketing in 2018 as its “Girl of the Year” doll. I will note here, as I often do, that in a false advertising case these allegations would likely be treated as conclusory at best.

Law 59

Law Privacy False Advertising Social Media 59

43(B)log

SEPTEMBER 10, 2021

29, 2021) Plaintiffs alleged that Kodiak was liable for “(1) non-functional slack fill and (2) deceptive marketing practices” for its pancake and waffle mixes. Defendant misleadingly labels and advertises its products as having “no preservatives” as well as being “free of artificial additives,” “non-GMO,” “healthy,” and “protein-packed.”

Marketing 45

Marketing Marketing Advertising Advertising 45

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

AUGUST 23, 2021

22, 2021) Monster “sells espresso energy drinks blended with European milk and purporting to be flavored with vanilla under their Monster brand.” By contrast, courts in the Second Circuit “have sustained claims where the language of a product label, in context, referred not only to a flavor but also indicated the presence of an ingredient.”

Branding 59

Branding Brands Branding Marketing 59

43(B)log

DECEMBER 1, 2022

Viacom also engaged a market research company to learn more about “southern beach culture,” which suggested that the term Flora-bama was “either unknown or though [sic] to refer strictly to the bar.” New Life Art, Inc., 3d 1266 (11th Cir. There was no requirement that the use be “necessary” to the art. Nor was referential use required.

Artistic Work 64

Artistic Work Television Trademark Trademark Law 64

43(B)log

APRIL 15, 2024

It provides farmers, ranchers, and butchers with marketing education and technical assistance; incubates “Meat Collectives” across the country; and educates consumers about responsible meat production and consumption practices. There was no evidence that consumers viewed the term “good meat” as referring a single source: that is, GMP.

False Advertising 64

False Advertising Advertising Advertising Marketing 64

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

OCTOBER 4, 2021

22, 2021) The parties compete in the market for “chemical bonding products—like epoxies, adhesives, threadlockers, gasket makers, and silicone sealants—that someone might buy at a hardware store to fix their car or for other mechanical projects.” Change over time in likelihood of confusion, not change over time in market share, is the key.

False Advertising 69

False Advertising Advertising Advertising Trademark 69

43(B)log

SEPTEMBER 30, 2021

26, 2021) The parties compete to sell novelty consumer goods; defendant allegedly copied plaintiff’s business model including its product launches, providing its affiliates with Strong Current’s “marketing methods and materials, which include, among other things, product depictions and graphics.”

False Advertising 56

False Advertising Advertising Advertising Marketing 56

43(B)log

JANUARY 13, 2023

Ancient Brands, LLC, 2023 WL 157956, No. 11, 2023) The parties compete in the market for collagen peptides supplements. Did the study referred to in the complaint actually show a decrease in joint pain or stiffness within a single day? “If Vital Proteins LLC v. 22 C 02265 (N.D. If that were the case—i.e.,

Advertising 102

Advertising Advertising Marketing Marketing 102

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. When it was an authorized Axon distributor, LHB’s owner registered various domain names including taser.org and tasers.org to help it market Tasers online.

False Advertising 52

False Advertising Advertising Advertising Social Media 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

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

SpicyIP

DECEMBER 30, 2023

The Division Bench judgement was passed on October 13, in response to the reference made by a Single Judge Bench where the Court disagreed with the finding of the coordinate bench in Boehringer Ingelheim v. The rejection order is authored by Dr. Latika Dawara, Asst. The judgement was passed by a Single Judge Bench of Justice Manish Pitale.

IP 124

IP Copyright Trademark Intellectual Property 124

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

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

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-capability refers to the vehicle’s capacity to perform at higher-than-normal speeds in a controlled environment—like, say, on a racetrack.

Advertising 52

Advertising Advertising Law False Advertising 52

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