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.,

"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.

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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?

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.

false advertising as a workaround when municipal codes are copied?

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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

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.

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

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.

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

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.

An Antitrust Framework for False Advertising, out now

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Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising , 106 Iowa L. 1841 (2021) From the introduction: Federal law presumes that false advertising harms competition. Finally, we introduce our antitrust framework for false advertising claims.

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

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.,

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

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

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.

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.

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

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

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.

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

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.

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.

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!

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!

Belmora’s U.S. Supreme Court certiorari reply brief in the FLANAX case

Likelihood of Confusion

False Advertising Flanax TerritorialityOriginally posted 2017-02-08 17:12:15. Republished by Blog Post Promoter. The post Belmora’s U.S. Supreme Court certiorari reply brief in the FLANAX case appeared first on LIKELIHOOD OF CONFUSION™.

FB's "Russian state-controlled media" label wasn't commercial advertising or promotion

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May 11, 2021) Facebook’s application of “Russia state-controlled media” label to a news page on Facebook was not commercial advertising or promotion. Mentioned here mostly to highlight the differences in pleading standards applied to trademark and false advertising claims.

contributory liability possible for lawyers in timeshare exit cases

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The lawyers allegedly added legitimacy and effectiveness to the scheme because the marketing defendants advertise that they work with a “team of professionals” and “attorney[s],” which helps “close the deal” with new customers. false advertising secondary liability tortious interference

if it's on the label, courts can presume consumers saw it

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The court also found Bailey’s advertising expert’s evidence to be persuasive; that went to whether consumers were deceived into thinking that Rite Aid gelcaps are faster acting than Rite Aid tablets after comparing them and relied on that. consumer protection false advertising

ThermoLife wins appeal of Lexmark-based dismissal of claims

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15, 2021) ThermoLife got a significant success in this appeal of the dismissal of its false patent marking, false advertising, and unfair competition claims. And it alleged proximate cause by alleging that its nitrates directly compete with Compound’s falsely advertised VASO6.

HAPPY FATHER’S DAY!

Delaware Intellectual Property Litigation Blog

ANDA Antitrust and Patent Misuse District of Delaware False Advertising Intellectual Property Patents Trademarks Unfair CompetitionWishing all the Dads a Happy Father’s Day!

Apple's "buy" button that doesn't result in ownership may mislead consumers

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california consumer protection false advertisingAndino v. Apple, Inc., 2021 WL 1549667, No. 2:20-cv-01628-JAM-AC (E.D. 20, 2021) iTunes allows consumers to “Rent” or “Buy” movies, television shows, music and other content.

maintaining outdated article on website about former supplier wasn't false association

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Whole Foods allegedly used and continued to use a photograph of this event in its advertising materials “to show Defendants’ purported commitment to local farms and giving back to the local community.” false advertising trademarkArchi’s Acres, Inc.

Mexican origin claims revitalized by survey

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consumer protection false advertising geographic indicationsGovea v. Gruma Corp., 2021 WL 4518457, No. CV 20-8585-MWF (JCx) (C.D. 18, 2021) Previous discussion. The amended complaint fares better: the tortilla packages at issue plausibly misrepresented Mexican origin.

Claims that timeshare exit services are legal and effective were not puffery

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11, 2021) Another timeshare versus timeshare exit false advertising case. Marketing Defendants allegedly falsely advertise timeshare exit services by promoting a legitimate process to exit timeshare contracts. consumer protection false advertising procedure

competitor's copying of photos doesn't inherently inflict competitive harm

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Along with copyright claims, McCleese asserted Lanham Act false advertising claims. DMCA §1202: McCleese didn’t plead facts sufficient to allege the existence of false CMI. False CMI, according to the case law, must appear in the “body” or “area around” the infringed work.

"first urgent care" practice claim isn't material or literally false

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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.

Journalism about investment isn't commercial speech

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13, 2021) Competing in the marketplace of ideas can ground a defamation claim, but not a false advertising claim. commercial speech false advertisingCrash Proof Retirement, LLC v. Price, 2021 WL 1387501, No. 2:20-cv-05906-JDW (E.D.

statements about legality of service were factual/falsifiable

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Republic alleged tortious interference, trespass/conversion, and false advertising claims. Lanham Act false advertising: Smash’s website FAW said: Will my waste company let me Smash my trash? false advertisingAllied Servs., LLC v.

Is disgorgement the new normal in Lanham Act cases?

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Is that true for false advertising plaintiffs? A jury found defendants liable for false advertising through a purportedly unbiased, independent site. So plaintiff is apparently entitled to disgorgement without ever having shown that it was damaged by the false advertising.