43(B)log

SEPTEMBER 30, 2021

We are definitely not there yet. This was true even though plaintiff alleged that there is a competing vanilla soymilk product on the market with a similar price point that obtains its vanilla flavor exclusively from the vanilla plant. Such an inference is just too far a reach.” What counts as common sense is quite variable.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

MARCH 6, 2024

1, 2024) NYU Langone sued Northwell for trade dress infringement, unfair competition and false designation of origin, and false advertising under the Lanham Act, as well as related claims under the New York GBL and New York common law. The court dismissed the complaint—the false advertising claims with prejudice.

False Advertising 59

False Advertising Advertising Advertising Reporting 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

OCTOBER 9, 2023

2, 2023) The parties compete in the market for amalgam capture devices, which remove fillings (or pieces thereof) from dental office wastewater. Plaintiff alleged that Stoma falsely advertised that its Capt-all device, which fits onto the end of a high volume evacuator valve, is an amalgam separator and EPA compliant.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

MAY 19, 2023

Defendants allegedly marketed the My Avastars dolls with a “code” that could be used in the Roblox platform. Looking at the side by side pictures in the complaint, this is a bit hard to swallow, but the evidence of copying/references to Roblox clearly bleed over from the TM side.

Copying 94

Copying False Advertising Social Media Advertising 94

43(B)log

MARCH 21, 2022

Bimbo sells Grandma Sycamore’s Home-Maid Bread; it sued defendants, who include the baker who developed the Grandma Sycamore’s recipe, for trade secret misappropriation, trade dress infringement, and false advertising when it sold a comparable bread product, Grandma Emilie’s, with the tagline “Fresh.

False Advertising 72

False Advertising Advertising Advertising Designs 72

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. The database does not list any of Defendant’s own products or additional services.

False Advertising 72

False Advertising Advertising Advertising Designs 72

43(B)log

SEPTEMBER 7, 2021

Wakefern operates approximately 353 supermarkets under various brands such as ShopRite and Fairway Market across several states, and has a registration for ShopRite. Marchese formed defendant Family Markets for the stated purpose of carrying out a retail supermarket business. False advertising: Not commercial advertising or promotion.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

AUGUST 20, 2021

24, 2021) Plaintiffs sought class certification of their false advertising claims based on the claims that KIND falsely advertised “All Natural / Non-GMO,” “Non-GMO,” and “No Genetically Engineered Ingredients”; KIND sought to exclude expert reports. In re KIND LLC “Healthy and All Natural” Litig., 2021 WL 1132147, Nos.

False Advertising 45

False Advertising Advertising Advertising Litigation 45

43(B)log

MARCH 28, 2024

Princeton insured Wonderland from 2016-2018 (with a broad exclusion for defamation, invasion of privacy, and various forms of advertising injury in the second year called the Exhibitions and Related Marketing Exclusion), and agreed to defend the club but reserved the right to deny insurance coverage.

Advertising 64

Advertising Advertising Settlement Contracts 64

Technology & Marketing Law Blog

JUNE 18, 2023

And then…the Ninth Circuit got the case again… The Majority Opinion After the Supreme Court cert denial, the district court ruled that Malwarebytes’ “malicious” and “threat” classifications were “non-actionable statements of opinion” and thus could not support a Lanham Act false advertising claim.

Blogging 87

Blogging False Advertising Litigation Marketing 87

43(B)log

JANUARY 12, 2024

Indeed, it continued, “(1) no carbon zero products exit, (2) the dictionary definition of ‘carbon neutral’ describes the use of offsets to balance emissions, and (3) the Product’s website explains evian® water’s approach to reducing and offsetting carbon emissions.”

Marketing 69

Marketing Marketing Advertising Advertising 69

43(B)log

JUNE 15, 2022

19, 2022) The parties compete in the market for energy drinks. VPX (Vital) makes BANG, which now contains creatyl-l-leucine (CLL), “a novel ingredient marketed under the trademark ‘Super Creatine.’ … Defendants claim that CLL is more stable and more bioavailable than other forms of creatine.”

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JANUARY 21, 2022

It apparently held that there were “compelling reasons to conclude that claims based on the validity of the Parikh Study—or any other peer-reviewed, non-fraudulent scientific study—are likely ‘non-actionable’ in the context of false advertising.” This satisfied both ONY and Southland Sod.

False Advertising 64

False Advertising Advertising Advertising Journalism 64

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. Then I’ll talk about the 9 th Circuit case Enigma Software v.

False Advertising 75

False Advertising Advertising Advertising Trademark 75

43(B)log

MARCH 20, 2023

WatsonSeal Marketing LLC v. WatsonSeal Marketing sued for false advertising under the Lanham Act, tortious interference with business relations under Alabama law, and unjust enrichment under Alabama law, but, having kicked out the Lanham Act claims, the court didn’t proceed any further with the state claims.

False Advertising 60

False Advertising Advertising Advertising Marketing 60

43(B)log

SEPTEMBER 5, 2023

Core-Brace alleged both false advertising and false association from the statements in the design manual and related documents. Core-Brace didn’t need to definitively exclude other reasons, but it needed to identify evidence “demonstrating a nexus between the alleged misrepresentations and its injury.”

False Advertising 59

False Advertising Law Advertising Advertising 59

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. For false advertising, the control group respondents were exposed to the same four MiTek stimuli but with the reference numbers removed. Simpson Strong-Tie Co. 2023 WL 137478, No. 20-cv-06957-VKD (N.D.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

43(B)log

MARCH 4, 2024

29, 2024) Previously, after a bench trial, the court found Albion liable for falsely advertising its caulk dispensing guns as “Made in the USA.” After more evidence, the court found that Albion adequately supported its unclean-hands defense—that Newborn had also made false USA origin claims—until early 2007.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

AUGUST 23, 2021

3, 2021) Sultanis alleged that petfood sold as being made with “free-run” poultry and “wild-caught” fish was falsely advertised. Even if the court were to take judicial notice of the Canadian definition, “it is highly implausible that Ms. Champion Petfoods USA Inc., 2021 WL 3373934, No. 21-cv-00162-EMC (N.D.

False Advertising 83

False Advertising Advertising Advertising Marketing 83

43(B)log

JANUARY 20, 2023

18, 2023) T-Mobile’s “Banned Seniors” was a nationwide marketing and advertising campaign intended to attract customers over the age of fifty-five. AT&T did not show likely success on the merits of its Lanham Act false advertising claim and did not receive a preliminary injunction. AT&T Mobility LLC v.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

IP and Legal Filings

SEPTEMBER 14, 2023

We are now witnessing the era of ‘Greenwashing’ where every other emerging business entity puts out claims on their sustainable practices by using vague terms like ‘eco’, ‘green’ etc in their marketing. The objective is to mislead the consumers knowing well the marketability of this concept.

Branding 76

Branding Brands Branding Trademark 76

43(B)log

OCTOBER 19, 2023

I’ll focus, as usual, on the false advertising bits and ignore the securities law parts. Another theory of harm came from allegations that the executive defendants and some of the promoter/influencer defendants were selling off their tokens as they promoted them, engaging in market manipulation.

Due Diligence 64

Due Diligence False Advertising Social Media Advertising 64

Technology & Marketing Law Blog

JANUARY 8, 2024

The court says there can’t be MULTIPLE instances of INITIAL interest confusion: By definition, initial interest confusion is “confusion that creates initial customer interest.” Bye, Goff * Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v. However, that issue has already been sent to the jury.

Trademark 78

Trademark Advertising Advertising False Advertising 78

43(B)log

OCTOBER 11, 2022

Tofurky has never been the subject of enforcement action by any federal agency for marketing or labeling its products in a misleading manner. Plus, its labels and marketing materials prominently identified its products as “all vegan,” “plant based,” “vegetarian,” “veggie,” or “made with pasture raised plants” on the front of its packages.

Law 56

Law False Advertising Designs Design 56

Technology & Marketing Law Blog

SEPTEMBER 10, 2022

He paid money to get extra visibility for his dating profile and claims he got poor results, so he sued Bumble for false advertising. Bumble made a series of miscues, including several problems with the email notice and the lack of a definitive screenshot of its blocker card. Alkutkar used the dating app Bumble. What went right?

False Advertising 125

False Advertising Marketing Marketing Advertising 125

43(B)log

SEPTEMBER 26, 2022

The complaint didn’t identify specific advertising statements that would plausibly misrepresent what the Zestimates were, “or even a particular home estimate produced by the Zestimate tool that allegedly conflicts with the real market value.” CUTPA: Covers both deceptiveness and unfairness.

Government 59

Government Law Advertising Advertising 59

43(B)log

MARCH 29, 2024

The Stop & Shop Wipes, which vary in fragrance and style, are all marketed and sold with bold, prominent font labeling them as “flushable” on the front of the packaging. 93A; Schotte also brought warranty, unjust enrichment, and fraud claims. The court declined to dismiss the complaint.

Law 59

Law Advertising Advertising Branding 59

43(B)log

JANUARY 10, 2023

6, 2023) Norman sued Gerber for allegedly falsely advertising its baby food/infant formula products as “NON GMO Not Made With Genetically Engineered Ingredients” on the front of the package, and also on the back above the ingredients list. Gerber Prods. 2023 WL 122910, No. 21-cv-09940-JSW (N.D.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

43(B)log

MARCH 10, 2023

Both copyright and false advertising claims (based on Sports Mall’s disparagement of eBay sellers as unreliable) survived a motion to dismiss, but the false advertising claim can’t make it past summary judgment, while Krikor received partial summary judgment on the copyright claim. They were used in their entirety.

False Advertising 59

False Advertising Advertising Advertising Copying 59

43(B)log

JANUARY 18, 2023

The complaint alleged that market research indicates that many Americans prefer foods and drinks with “free from” claims because they believe such products are more natural, healthier, and less processed, and that they are willing to pay more for such products. affirms or promises that such material.

Marketing 106

Marketing Marketing False Advertising Advertising 106

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. Anyway, the front label here was ambiguous, not misleading.

False Advertising 59

False Advertising Marketing Marketing Advertising 59

43(B)log

MAY 12, 2022

They are: the Unfair Competition Law (UCL); the False Advertising Law (FAL); and the Consumer Legal Remedies Act (CLRA). While they often cover the same conduct in false advertising cases and are cumulative of each other, they have differences. See, e.g., In re Coca-Cola Products Marketing & Sales Practices Litig. (No.

False Advertising 59

False Advertising Advertising Advertising Business 59

Technology & Marketing Law Blog

SEPTEMBER 28, 2021

.” Clearly, the second part of that definition targets Amazon and other major marketplaces, such as eBay, Walmart Marketplace, and Etsy. The first part of the definition includes services with “publicly interactive features that allow for arranging the sale or purchase of goods.”

Trademark 136

Trademark False Advertising Advertising Advertising 136

43(B)log

APRIL 3, 2023

The problem for Defendant is that “collagen,” standing on its own, is not some undefined, amorphous term — there is a widely-accepted scientific definition describing collagen. But Defendant is not free to offer its own definition of “collagen” unsupported by any reliable science in the record.

False Advertising 52

False Advertising Marketing Marketing Advertising 52

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

JULY 20, 2022

They then agreed that Chiusa would create and operate a website, colorcopper.com, marketing and distributing Stubenrauch’s copper sheets “to a new industry for copper countertops, bar tops and kitchen backsplash.” False advertising: The allegations identified “merely describe the supposed underlying trademark infringement.”

False Advertising 72

False Advertising Ownership Registration Designs 72