Disgorgement in a noncomparative false advertising case: doctrinal drift?

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This allowed McCormick to advertise what seemed like an attractive lower price and charge more. damages false advertising remediesWatkins Inc. McCormick & Co., 2021 WL 5810487, NO. 15-2688(DSD/BRT) (D.

falsely advertising "proprietary" and "exclusive" material isn't actionable under Dastar

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14, 2021) Dawgs alleged that Crocs falsely marketed its shoes in violation of the Lanham Act by advertising Croslite, the foam material that Crocs shoes are made from, as “patented,” “proprietary,” and “exclusive.” dastar false advertisingCrocs, Inc. Effervescent, Inc.,

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two Zillow false advertising cases, divergent outcomes

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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. Lanham Act claim: Was this commercial advertising or promotion?

"advertising injury" insurance exclusion doesn't exclude false advertising claims

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28, 2021) Mostly this case is about other things, but the court finds a duty to defend in the underlying false advertising case. Luxottica was sued in a class action alleging that its AccuFit system for prescription eyeglasses was falsely advertised as more accurate.

false advertising as a workaround when municipal codes are copied?

43(B)log

Likewise, ICC alleged that UpCodes falsely claimed: “Integrated Amendments: Never miss important requirements in your jurisdiction”; “UpCodes has the adopted codes as enacted by the state or local jurisdiction”; and “While some states provide integrated codes. false advertising

False advertising-based antitrust claims against Facebook survive motion to dismiss

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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. antitrust false advertising privacyKlein v. Facebook, Inc., 2022 WL 141561, No.

aiding and abetting liability in false advertising cases

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And using a “false front” website for financial institutions would also be misleading and deceptive to a reasonable consumer. california false advertising secondary liabilityBonus: Civil RICO claims survive! Sihler v. Fulfillment Lab, Inc., 2021 WL 1293839, No.

Survey flaws prevent it from saving vanilla false advertising claim

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consumer protection false advertising surveysClark v. Westbrae Natural, Inc., 2021 WL 1580827, No. 20-cv-03221-JSC (N.D.

Lexmark allows direct and contributory false advertising claims against certifier

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The stamps thus allegedly operate as powerful advertising, allowing Brazilian plywood companies to market their products as conforming to an important American safety standard. Were there allegedly false or misleading statements by the defendants? false advertising secondary liability

tortious interference claim from false advertising survives, but why bother?

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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. false advertising tortious interferenceLogistick, Inc. AB Airbags, Inc.,

Court rejects "buy button" false advertising claim because consumer hasn't yet lost access to "purchased" content

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That’s kind of the point of false advertising law generally, and certainly the “Made in the USA” cases make clear that deviation from what you were promised as part of the bargain is a potential cause of economic loss. california consumer protection false advertising

False advertising is distinct from violation of antidumping rules; FTC/AGs needed

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To borrow a metaphor that could have been written for this case, the producer’s advertising in the United States is a “complete fraud from bark to core.” false advertisingDalian Meisen Woodworking Co v. United States, 2021 WL 5371406, No. 20-00109 (Ct. Int’l Trade Nov.

facially plausible false advertising claim can be added to TM complaint

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27, 2021) Ideavillage sued CCB for trademark infringement and false designation of origin related to Ideavillage’s “Copper Fit” line of copper-infused compression garments. Here, the court granted leave to amend to add a false advertising claim. false advertising trademark

TM claimant may add false advertising claims as direct competitor

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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. And Entrepreneur alleged that “but for” defendants’ false advertising, consumers would not have been misled and diverted away from Entrepreneur.

counting chickens: should disgorgement be harder for false advertising than for TM?

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Certified alleged Lanham Act false advertising based on allegations that the Clorox defendants and Avicenna engaged in a scheme to falsely advertise the source of chicken collagen used in dietary supplements sold to retail consumers. false advertising remedies

over dissent, 9th Cir. denies injury presumption to false advertising claimant

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7, 2021) Quidel appealed the grant of summary judgment to Siemens on Quidel’s Lanham Act false advertising claims and related state claims. Quidel alleged that Siemens advertised (1) but provided (2). In context, there wasn’t a false comparative ad. Quidel Corp.

Dastar doesn't bar allegedly false advertising about source of planned development services

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False advertising: This one survived: By listing LStar developments under the heading “Oak City Representative Developments,” “the proposal necessarily implies that defendant Oak City developed those properties.” dastar false advertising trademarkLStar Development Gp.,

TM infringement and false advertising claims related to putative open source software "fork" succeed

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Perplexingly, the court also suggested that in comparative advertising defendants would be bound by Neo4j’s trademark guidelines, which does not seem exactly right unless those guidelines happen to reproduce the law (perhaps they do). Thus, these statements were false. Neo4j, Inc.

Contract remedies again prove broader than false advertising for pandemic-related suits

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Plaintiffs cite, and the Court has found, no case holding that a plaintiff can state a claim under Section 349 or 350 where the defendant neither knew nor could have known that its commercial acts or practices were false.” [A contracts false advertising

Judge Noreika Grants Defendant’s Post-Trial Renewed Motion for Judgment as a Matter of Law Reversing the Jury’s Finding of Liability for False Advertising under the Lanham Act and Award of Punitive Damages Against Defendant

Delaware Intellectual Property Litigation Blog

January 5, 2022), the Court granted Defendant Next Caller’s post-trial renewed motion for judgment as a matter of law of no false advertising under the Lanham Act and to take away the jury’s award of punitive damages.

Cracks in the foundation: Laches and proximate cause defeat auto glass false advertising claim

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Safelite allegedly falsely advertised that (1) “if damage spreads beyond the size of a dollar bill, a replacement will be necessary”; (2) “when a chip is smaller than a dollar bill, it can usually be repaired without replacing the windshield.” false advertising remedies

MLM on MLM action: tortious interference, trade secret, but not false advertising

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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. False advertising under the Lanham Act: Failed because It Works didn’t plead that distributors were “consumers” under the Lanham Act. false advertisingIt Works Marketing, Inc. Melaleuca, Inc.,

TM complainant fails to sink its teeth into unrelated false advertising claims

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Unsurprisingly, the trademark claims survive a motion to dismiss, but associated false advertising claims don’t. VFB alleged trademark infringement, and that the Vampiro Cocktail label’s claims that it is made from 100% agave and with grapefruit were false advertising that would tarnish and dilute VFB’s marks. False advertising: Article III standing existed, but not Lanham Act standing. false advertising standing trademark

handful of bad Amazon reviews make Energizer's false advertising claims plausible

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16, 2021) Along with breach of contract and tortious interference claims, Energizer alleged that MTA falsely advertised by selling batteries with Energizer’s mark and then by fulfilling orders with products different from those advertised and shipping batteries to consumers that were “used, aged, or tampered-with.” In seven consumer reviews quoted in the complaint, the reviewers report that batteries sold by the relevant account did not work or were not as advertised.

even admissions and severe financial distress don't justify TRO/asset freeze in false advertising case

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SI03 originally sued for false advertising and related claims, and Musclegen counterclaimed similarly. SI03 alleged that Musclegen markets its Genepro protein powder product by falsely claiming it contains 30 grams of protein in a roughly 11.15 It further alleged that Musclegen’s marketing and packaging statement that it contains “medical grade” protein is incorrect, false, and misleading, as no industry or FDA standard exists for “medical grade” protein. SI03, Inc.

IIC decision also says some things about false advertising: materiality may not be presumed from literal falsity

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I won’t say much about that, though I do have a big question, but there are also false advertising aspects of the case. Examples included the use of terms such as “Sleep 55% Off Number Beds” and “Comfort Air Beds on Sale” in online advertisements. false advertising trademark

Microsoft dodges some false advertising claims based on its security offerings

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6, 2020) From the deepest depths of backlog: Tocmail alleged that Microsoft’s deceptive promotions of its cyber-security service, Safe Links, constituted false advertising and contributory false advertising. Tocmail alleged that “it is literally false that Safe Links protects users by ‘thwarting this type of attack’ [that is, the described attacked of sophisticated hackers].” This wasn’t enough to state a claim for contributory false advertising. “[T]he

false advertising claim fails, in part because of stringent antitrust rules

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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. Sanofi argued that none of its advertisements or promotional materials made any of these assertions. antitrust false advertising

Cal. statutory false advertising isn't fraud and individual reliance isn't necessary

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2021) Plaintiffs sought to represent a putative class, bringing claims against a landlord for (1) false advertising; (2) breach of the implied warranty of habitability; (3) nuisance; (4) breach of the implied covenant of good faith and fair dealing; (5) bad faith retention of security deposits; and (6) unfair competition. Defendants argued that common questions didn’t predominate for false advertising. Statutory false advertising is not common law fraud.

Apple False Advertising Suit for “Buy” Buttons Could Have Serious Implications for Streaming Companies

The IP Law Blog

Apple is facing a new class-action lawsuit in the Western District of New York alleging that its use of the “buy” button is “false and misleading.” For one, New York’s false advertising law provide potential damages of $500 per instance of false advertising.

patent misrepresentations to prospective dealer could be false advertising under Dastar/Lexmark

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Shingle Savers counterclaimed, alleging, among other things, false advertising under the Lanham Act and violation of the Ohio Deceptive Trade Practices Act. It alleged that RM enticed Holsinger to sign the agreement by falsely representing that two generations of the product were patented, when it knew the patent lapsed in 2014 due to failure to pay maintenance fees. Was this commercial advertising or promotion? dastar disparagement false advertising

Judge Noreika Grants Defendant’s Post-Trial Renewed Motion for Judgment as a Matter of Law Reversing the Jury’s Finding of Liability for False Advertising under the Lanham Act and Award of Punitive Damages Against Defendant

JD Supra Law

January 5, 2022), the Court granted Defendant Next Caller’s post-trial renewed motion for judgment as a matter of law of no false advertising under the Lanham Act and to take away the jury’s award of punitive damages.

Apple False Advertising Suit for “Buy” Buttons Could Have Serious Implications for Streaming Companies

LexBlog IP

Apple is facing a new class-action lawsuit in the Western District of New York alleging that its use of the “buy” button is “false and misleading.” For one, New York’s false advertising law provide potential damages of $500 per instance of false advertising.

Insert your own joke here about suing the Jets and Giants for false advertising – text of SDNY class action complaint

LexBlog IP

Class action alleging various New York state torts including false advertising arising from the Jets and Giants identifying themselves as New York teams when they play in New Jersey. Note to out-of-towners – both the Jets and the Giants have w-l records of 4 and 12. Some coverage here (As of now, most of the coverage is behind paywalls) and this link is wonky. Text of complaint in Suero v Jets and Giants jets and giants 1_22-cv-00031-AJN_1_PRIMARY DOCUMENT.

District of Delaware Grants Defendant’s Motion to Exclude Plaintiff Damages Expert’s Testimony in False Advertising Action under the Lanham Act

Delaware Intellectual Property Litigation Blog

May 7, 2021), the Court granted Natera’s motion to exclude at trial the opinions of CareDx’s damages expert relating to “corrective advertising damages.” CareDx’s Lanham Act claims were based on allegations that Natera falsely represented that Natera’s Prospera kidney transplant test is superior to CareDx’s Allosure Kidney test. Natera moved to exclude CareDx damages expert’s testimony on corrective advertising damages under Rules 702 and 403 of the Federal Rules of Evidence.

Judge Noreika Grants Defendant’s Post-Trial Renewed Motion for Judgment as a Matter of Law Reversing the Jury’s Finding of Liability for False Advertising under the Lanham Act and Award of Punitive Damages Against Defendant

LexBlog IP

January 5, 2022), the Court granted Defendant Next Caller’s post-trial renewed motion for judgment as a matter of law of no false advertising under the Lanham Act and to take away the jury’s award of punitive damages.

false advertising & bankruptcy law: $18 million for deceptive campaign in violation of automatic stay

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As alleged in the initial complaint, Charter mailed solicitations whose envelopes “used Windstream’s trademark and copied the same distinct color pattern from Windstream’s current advertising campaign.” false advertising remediesIn re Windstream Holdings, Inc., 627 B.R.

MERRY CHRISTMAS!

Delaware Intellectual Property Litigation Blog

ANDA Antitrust and Patent Misuse District of Delaware False Advertising Intellectual Property Patent Actions Patent Infringement Patents Trademarks Uncategorized Unfair CompetitionWishing you and yours a Merry Christmas!

Happy Thanksgiving!

Delaware Intellectual Property Litigation Blog

ANDA Antitrust and Patent Misuse District of Delaware False Advertising Intellectual Property Patent Infringement Trademarks Unfair CompetitionWishing you and yours a Happy Thanksgiving!

Happy New Year!

Delaware Intellectual Property Litigation Blog

ANDA Antitrust and Patent Misuse District of Delaware False Advertising Intellectual Property Patent Infringement Trademarks Unfair Competition Delaware counsel litigationHappy New Year 2022!

Happy 4th of July!

Delaware Intellectual Property Litigation Blog

ANDA Antitrust and Patent Misuse District of Delaware False Advertising Intellectual PropertyWishing all readers of the Delaware Intellectual Property Litigation blog a Happy 4th of July!

"false association with EPA" claim can be brought by competitor

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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. ISK Biocides, Inc. Pallet Machinery Group Inc.,

Happy Labor Day!

Delaware Intellectual Property Litigation Blog

ANDA Antitrust and Patent Misuse District of Delaware False Advertising Intellectual Property Patents Trademarks Unfair Competition antitrust patentHappy Labor Day!