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.’” Not all marketing of artistic works is noncommercial speech. There was also no copyright preemption.

False Advertising 59

False Advertising Advertising Advertising Artistic Work 59

43(B)log

JANUARY 23, 2023

The parties compete in the market for audio products and sell competing models of multichannel amplifiers on different platforms, including Amazon. The false statement at issue is OSD’s claim that one of its products, an amplifier, has a signal-to-noise ratio of 115 decibels.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

OCTOBER 11, 2022

30, 2022) Pegasystems alleged that defendants, which compete with it in the business process management (BPM) software field, engaged in false advertising and commercial disparagement in an online report that portrayed Pegasystems unfavorably. So Appian got summary judgment on Pegasystems’ claim money damages for lost business.

Marketing 59

Marketing Marketing Business False Advertising 59

43(B)log

SEPTEMBER 13, 2021

2, 2021) Rex sued Zillow and the National Association of Realtors for antitrust and false advertising violations. Surprisingly, the antitrust claims survive, as do false advertising claims agains Zillow. Zillow argued that its conduct was “reasonable in relation to the development and preservation of [its] business.”

False Advertising 59

False Advertising Advertising Advertising Licensing 59

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. Chapter 2: What is an Advertisement? Chapter 3: False Advertising Overview. Chapter 9: False Advertising Practice and Remedies. Chapter 10: Other Business Torts.

Editing 119

Editing Advertising Advertising Marketing 119

43(B)log

APRIL 25, 2022

The plaintiffs alleged that the stamps themselves were “a powerful form of advertising because they allow the Brazilian plywood companies to market their products as conforming to an important American safety standard.” pictures of not-good plywood from case Plaintiffs alleged both direct and contributory false advertising.

False Advertising 72

False Advertising Advertising Advertising Licensing 72

43(B)log

JANUARY 17, 2024

Ultra Bond alleged that Safelite violated the Lanham Act by falsely advertising that windshield cracks longer than six inches could not be safely repaired and instead required replacement of the entire windshield. Safelite is the VGRR market leader: in 2016, it had 35.4% of the market; its closest competitor had just 3%.

False Advertising 64

False Advertising Marketing Marketing Advertising 64

43(B)log

AUGUST 27, 2021

The stamps thus allegedly operate as powerful advertising, allowing Brazilian plywood companies to market their products as conforming to an important American safety standard. Google didn’t attest to anything about the locksmiths; it was like a building that rents space to business owners.

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

SEPTEMBER 29, 2021

It Works Marketing, Inc. The claims are mostly the kind of trade secret/tortious interference claims you’d expect from this setup, and I won’t say much about them, but there is also a false advertising claim about alleged misrepresentations of distributors’ income with Melaleuca. Melaleuca, Inc., 2021 WL 1650266, No.

False Advertising 45

False Advertising Advertising Advertising Social Media 45

43(B)log

SEPTEMBER 28, 2021

Roach, meanwhile, makes frequent use of the phrase “The Unstoppable Entrepreneur” and applied to register the phrase for “Business consultancy; Business marketing consulting services.” Entrepreneur’s desire to bring forth a claim for false advertising against a competitor in a similar market is not unusual behavior.”

False Advertising 45

False Advertising Advertising Advertising Contracts 45

43(B)log

SEPTEMBER 28, 2021

Unsurprisingly, the trademark claims survive a motion to dismiss, but associated false advertising claims don’t. VFB’s marks are visible to the public in many places, including on VFB’s website, in the public records of the USPTO, and in various national media due to VFB’s continuous marketing of its products.”

False Advertising 45

False Advertising Advertising Advertising Trademark 45

43(B)log

SEPTEMBER 22, 2023

This allegedly harmed Geomatrix’s business. Lanham Act and state unfair competition law: Although Geomatrix alleged disparagement, it failed to describe what “independent harm” occurred in the market or how defendants’ actions actually “influenc[ed] consumers’ purchasing decisions.”

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

AUGUST 9, 2021

Similarly, “ordinary business transactions” can satisfy the substantial assistance element of an aiding and abetting claim “if the [defendant] actually knew those transactions were assisting the [principal] in committing a specific tort. They allegedly “directly run” ad campaigns for their clients, including Beyond Global.

False Advertising 69

False Advertising Advertising Advertising Designs 69

43(B)log

JANUARY 19, 2022

14, 2022) Once in a blue moon, a false advertising-based antitrust claim survives a motion to dismiss in a circuit that imposes a list of excessive requirements on such claims. Consumers and advertisers adequately alleged that Facebook has monopoly power in social network/social media (consumers) and social advertising markets.

False Advertising 59

False Advertising Advertising Advertising Privacy 59

IP Law 360

MARCH 21, 2024

A swimming pool equipment manufacturer is looking to permanently ban a competitor from using deceptive marketing techniques on Amazon after a federal jury in North Carolina slapped the rival company with a nearly $15 million verdict for false advertising and unfair business practices.

False Advertising 52

False Advertising Advertising Advertising Marketing 52

43(B)log

JUNE 17, 2022

7, 2022) The court upheld a contempt finding based on an underlying false advertising claim. The underlying permanent injunction barred defendants from suggesting in promotional materials that their probiotic contained the same formulation as one marketed by De Simone. caused ExeGi to lose business.”

False Advertising 64

False Advertising Advertising Advertising Litigation 64

43(B)log

OCTOBER 6, 2021

In re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices & Antitrust Litig., 17, 2020) A lot of stuff here; I will ignore the non-false advertising related aspects of this mostly antitrust case. Sanofi argued that none of its advertisements or promotional materials made any of these assertions.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

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

AUGUST 20, 2021

Shingle Savers counterclaimed, alleging, among other things, false advertising under the Lanham Act and violation of the Ohio Deceptive Trade Practices Act. Moreover, the alleged misrepresentations concerned the nature of Roof Maxx’s own roofing Product and were presented in official marketing material and conversations.

False Advertising 45

False Advertising Advertising Advertising Patent 45

IP Watchdog

FEBRUARY 14, 2024

But how much control do brands like Chanel have over merchants who resell name-brand items in the secondary market? The answer, according to a federal jury in the Southern District of New York, is “Quite a bit.”

False Advertising 72

False Advertising Trademark Branding Brands 72

43(B)log

AUGUST 7, 2023

2, 2023) A smoothly written opinion: As the complaint tells it, Paul Mitchell has long marketed its business and its products as “cruelty-free.” Although not all the purchased products appeared in the Chinese import registry, “in its marketing, Paul Mitchell doesn’t just advertise that it sells ‘cruelty-free’ goods.

Marketing 52

Marketing Marketing False Advertising Advertising 52

43(B)log

SEPTEMBER 26, 2022

20, 2022) Plaintiff PCC sued NABP, a nonprofit whose membership consists of state/similar political unit boards of pharmacy (some other pharmacy associations/partnerships are also separate defendants), alleging violations of the Sherman Act and false advertising under the Lanham Act. pharmacies.” pharmacies.”

Marketing 56

Marketing Marketing False Advertising Advertising 56

43(B)log

NOVEMBER 27, 2023

Marketing, Sales Practices & Products Liab. SoClean is a dominant player in the market for medical devices that sanitize continuous positive airway pressure machines (CPAPs), which treat sleep apnea and respiratory conditions. And, they continued, SoClean was illegally marketing its devices. In re SoClean, Inc., 22-542 (W.D.

Advertising 59

Advertising Advertising Marketing Marketing 59

43(B)log

DECEMBER 16, 2022

One of TAMB’s subsidiaries employed defendant Roup for six years as a trainer and Roup signed an NDA covering “nonpublic business and operation information, training materials and manuals, and transcribed methods. including those comprising the TA Method’s proprietary choreography movements.” [Not

Marketing 59

Marketing Marketing False Advertising Contracts 59

43(B)log

APRIL 20, 2023

Lewis didn’t allege that his payment of this referral fee injured his status in the realtor market in any way. The court commented that other realtors could have standing: To be sure, it is not difficult to imagine a potential commercial injury to realtors arising from Acuity’s allegedly false advertising.

False Advertising 72

False Advertising Advertising Advertising Business 72

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 compete in the market for skid steer attachments and other products.

Fair Use 64

Fair Use Advertising Advertising False Advertising 64

43(B)log

FEBRUARY 16, 2023

7, 2023) Navatar sued for state and federal false advertising, as well as commercial defamation, injurious falsehoods, unfair competition. The “touchstone” is “that the contested representations are part of an organized campaign to penetrate the relevant market. Navatar Group, Inc. DealCloud, Inc., 2023 WL 1797266, No.

Advertising 59

Advertising Advertising False Advertising Marketing 59

43(B)log

SEPTEMBER 27, 2021

13, 2021) Not having a materiality or harm requirement really makes a difference in trademark cases compared to false advertising cases—look at the reasons this false advertising claim fails. AFC sued MedHelp for Lanham Act false advertising. Finally, AFC also failed to show injury.

False Advertising 59

False Advertising Advertising Advertising Marketing 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. POM Wonderful LLC v. Coca-Cola Co.,

False Advertising 69

False Advertising Advertising Advertising Marketing 69

43(B)log

OCTOBER 29, 2021

11, 2021) A rare bankruptcy/false advertising interaction. Of relevance here, Everlog argued that the false advertising damages were nondischargeable in bankruptcy. BTL argued that summary judgment was inappropriate because the district court didn’t consider whether the false advertising was “malicious.”

False Advertising 72

False Advertising Advertising Advertising Litigation 72

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

MAY 19, 2023

Its TOS provide that users will not use Roblox content outside of the Roblox Platform, monetize Roblox content, or imply an association with Roblox for their businesses outside of the Roblox Platform. Defendants allegedly marketed the My Avastars dolls with a “code” that could be used in the Roblox platform.

Copying 94

Copying False Advertising Social Media Advertising 94

43(B)log

JUNE 19, 2023

14, 2023) Unlimited, an “online non-authorized reseller of consumer products,” sued Red Points for defamation, tortious interference, and false advertising under state and federal law. Lanham Act false advertising: Unlimited sufficiently pled standing. Red Points Solutions SL, 2023 WL 4029824, No.

False Advertising 69

False Advertising Advertising Advertising Reporting 69

43(B)log

OCTOBER 11, 2023

27, 2023) Interesting bench trial result that finds no proximate causation of plaintiff’s injury from defendant’s false advertising. A customer who wanted a product that didn’t have enough alcohol to need a label would have instead purchased “one of dozens of available nonalcoholic kombucha drinks in the market.”

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

APRIL 25, 2023

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. Automated Pet Care Prods., Purlife Brands, Inc.,

False Advertising 59

False Advertising Advertising Advertising Social Media 59

43(B)log

AUGUST 25, 2021

This was allegedly still false and misleading, and First Databank allegedly falsely advertised that it “compile[s]” the relevant information in its database and for its coding determinations from the FDA and from manufacturers, such as Alfasigma. That was too extensive, so the claims all failed.

False Advertising 72

False Advertising Advertising Advertising Designs 72

Technology & Marketing Law Blog

JANUARY 19, 2023

A couple of specifics: The false advertising claims don’t escape 230: “Had those third-party users refrained from posting harmful content, Plaintiffs’ claims that Defendants falsely advertised and misrepresented their applications’ safety would not be cognizable.” Despite Doe v. LEXIS 5481 (C.D.

False Advertising 86

False Advertising Social Media Publishing Advertising 86