Examining the Circuit Split on Preliminary Injunctions in False Advertising Post-eBay

IP Watchdog

In responding to the unprecedented COVID-19 challenges, companies around the world are rushing to capitalize on the current crisis by advertising the effectiveness of their products in containing the virus spread.

Applying Romag to false advertising cases

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A jury found that defendants had engaged in materially false or misleading advertising about the parties’ competing whale-watching-cruise business in violation of the Lanham Act, but the jury awarded $0 in actual damages. false advertising remedies

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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.

court presumes injury from comparative false advertising for injunctive relief, not monetary

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28, 2022) The parties compete to provide online ordinations to individuals who wish to perform marriage ceremonies and accuse each other of misconduct in advertising. Lexmark , the court held, didn’t supersede the presumption of injury for false comparative advertising.

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.,

4th Circuit upholds contempt ruling in false advertising case: scrub your website and FB account!

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7, 2022) The court upheld a contempt finding based on an underlying false advertising claim. The injunction didn’t define the term, but since it was based on a Lanham Act violation, “commercial advertising or promotion” was the proper guidepost. false advertising remedies

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?

Noncommercial speakers can be liable for contributory false advertising

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25, 2022) I know it probably seems sometimes like I approve of every expansive use of false advertising law, but sometimes even I find an aggressive position to go too far. Here, ExeGi sues a doctor for producing some of the materials ExeGi’s rivals use to promote themselves, and the court approves a contributory false advertising claim, reasoning that the “commercial advertising and promotion” requirement applies only to the underlying speech, not to the doctor’s speech.

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

two opinions send "false advertising of certification mark" claim to jury

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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.” false advertising secondary liability

"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.

10th circuit won't presume false advertising harm just from direct competition

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InterNACHI argued that ASHI’s tagline constituted Lanham Act false advertising because it portrays ASHI’s entire membership as being educated, tested, verified, and certified, even though its membership includes so-called “novice” inspectors who have yet to complete training or become certified. damages false advertising standingAmerican Society of Home Inspectors, Inc. International Ass’n of Certified Home Inspectors, F.4th -, 2022 WL 2125492, No. 21-1087 (10th Cir.

National Ass'n of Realtors fails to show standing in false advertising counterclaim

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22, 2022) Part of a larger dispute; the National Association of Realtors (NAR) counterclaimed against REX for false advertising in violation of the Lanham Act. However, NAR didn’t allege that any consumers or brokers have withheld trade from NAR as a result of the advertisements.

9th Circuit finds noncompetitor lacks statutory standing in nondisparagement false advertising case

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2, 2022) The court of appeals upholds the rejection of ThermoLife’s false advertising claims (Lanham Act and Florida’s FDUTPA) on statutory standing grounds. false advertising standingThermoLife Int’l LLC v. BPI Sports, LLC, 2022 WL 612669, No. 21-15339 (9 th Cir.

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.

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.,

Side panel disclosure not enough to avoid "flushable" false advertising suit

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for falsely advertising them as “flushable” under California’s CLRA/UCL/FAL, NY’s GBL, Illinois’s ICFA, and breach of warranty. california consumer protection false advertising remediesWyant v. Dude Prods., 2022 WL 621815, No. 21-cv-00682 (N.D. Ill Mar.

No Harm, No Foul: No False Advertisement Where Trade Association Failed to Show Injury

JD Supra Law

The US Court of Appeals for the Tenth Circuit affirmed a district court’s grant of summary judgment in favor of a home inspector association on a false advertising claim brought by a competitor, finding no evidence of injury or harm and explaining that harm could not be presumed merely from the fact that the parties compete for members.

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

seller's online arbitrage exposes it to (c) and false advertising claims

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In August 2020, Krikor discovered that Sports Mall had posted at least six of her photographs on its website and advertised the depicted items for sale on its site…. This alleged chutzpah triggered the false advertising element of the case. “[T]he copyright 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.

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.

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.

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

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

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.,

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.

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.

'Fresh, Local, Quality' — How Unverifiable Opinions Evade False Advertising Claims | Kattison Avenue | Issue 8 - Spring 2022

JD Supra Law

When the Tenth Circuit Court of Appeals recently evaluated these words used to promote a bakery's bread, it deemed the tagline not actionable as false advertising and merely opinion. For a consumer, the words "Fresh. Local. Quality."

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

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

Half-Baked Case: No Misappropriation or False Advertising Given Over-Broad Allegations

JD Supra Law

The US Court of Appeals for the Tenth Circuit affirmed a district court’s grant of summary judgment in favor of a defendant baker on a trade dress infringement claim and reversed the district court’s denial of the defendant baker’s motions for judgment as a matter of law on trade secrets misappropriation and false advertising claims.

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.,

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.

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.

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