43(B)log

MARCH 16, 2023

Despite Romag , the court declines to award disgorgement or fees in this false advertising case. A jury found that Harbor Breeze proved all elements of liability for false advertising but awarded $0 in damages and profits. But here, evidence connecting false advertising to defendants’ profits was lacking. (Is

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43(B)log

JUNE 29, 2023

Vitamins Online sued Heartwise under the Lanham Act and Utah’s Unfair Competition Law for false advertising about the ingredients of its competitive nutritional supplements and manipulating those products’ Amazon reviews. Nor was Vitamins Online required to prove a nexus between the false advertising and the lost sales.

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43(B)log

APRIL 25, 2023

Republic alleged that HBI, its competitor in the tobacco rolling paper industry, engaged in false advertising under the Lanham Act, unfair competition, and violations of the IUDTPA. Also, a company’s belief that its advertising is important and profitable “is not evidence that the advertising actually had that effect.”

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43(B)log

MAY 22, 2023

May 17, 2023) The court grants these timeshare plaintiffs’ motion for a bench trial, ruling that the Seventh Amendment doesn’t guarantee a jury trial in a false advertising case where the plaintiffs seek only equitable remedies. Timeshare Lawyers P.A., 2023 WL 3510374, No. 20-24681-Civ-Scola (S.D. Hard Candy, Ltd.

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43(B)log

APRIL 18, 2023

ZimVie intervened and counterclaimed for declaratory judgment of invalidity, cancellation fo the color marks registration, declaratory judgment of noninfringement, false advertising under the Lanham Act and California law, and tortious interference.

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43(B)log

DECEMBER 10, 2021

Thus, for disgorgement of profits, a plaintiff need only show the defendant’s “sales of the allegedly falsely advertised products,” after which the burden shifts to the defendant to prove “any costs or deductions.” This contrasts to damages, which require proof of a causal link between plaintiff’s injury and defendant’s conduct.

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43(B)log

SEPTEMBER 28, 2021

There’s nothing entailed here about Crocs falsely claiming credit for something someone else did, as there was in Baden where the allegations did at least resemble reverse passing off.] When the Supreme Court left §43(a)(1)(B) claims open in Dastar , this is the kind of thing that fits well.

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43(B)log

SEPTEMBER 7, 2023

4, 2023) McCracken alleged that SlimFast food products were falsely advertised as “CLINICALLY PROVEN [ – ] LOSE WEIGHT & KEEP IT OFF” on the front of their packaging. McCracken v. KSF Acquisition Corp., 2023 WL 5667869, No. 5:22-cv-01666-SB-SHK (C.D.

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43(B)log

DECEMBER 12, 2022

6, 2022) The district court reverses the bankruptcy court ruling ( discussed here ) that held that false advertising had interfered with the debtor’s estate in violation of the automatic stay. But why would some advertising constitute exercising control while other advertising didn’t? In re Windstream Holdings, Inc.,

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43(B)log

JUNE 9, 2021

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. Federal law also presumes that false advertising is harmless or even helpful to competition.

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43(B)log

MARCH 3, 2023

TRUSTID lost both patent infringement and Lanham Act false advertising claims. Next Caller, Inc., 2023 WL 2298748, 2022-1433 (Fed. 1, 2023) Discussion of some district court proceedings here. I’ll only discuss the latter. TRUSTID developed a caller identification product known as the Authenticator.

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43(B)log

JANUARY 13, 2023

But what about false advertising? Lanham Act: Five 18 allegedly violated the Lanham Act by replicating and publishing Wolf’s designs while holding themselves out as the creators of the designs, confusing the public and consumers. Dastar barred a passing off claim.

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LexBlog IP

FEBRUARY 21, 2023

Universal City Studios, LLC , the United States District Court for the Central District of California refused to dismiss Woulfe’s false advertising claims, finding that a deceptive movie trailer can form the basis of false advertising claims and that trailers are not necessarily immune from suit by the First Amendment because trailers are commercial (..)

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43(B)log

OCTOBER 5, 2021

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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43(B)log

AUGUST 25, 2022

22, 2022) The court here allows an antitrust claim to proceed based in part on allegedly false/misleading statements because they form part of the alleged anticompetitive product-hopping scheme and because the unique characteristics of the drug market make market-based responses to false advertising difficult.

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43(B)log

APRIL 25, 2022

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. It is enough if a defendant provides “a necessary product or service, without which the false advertising would not be possible.”

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43(B)log

AUGUST 22, 2022

The First Amendment has long coexisted with no-fault false advertising laws. Citing Dastar and Rogers ; noting in a footnote that Dastar suggested that Lanham Act false advertising claims might sometimes govern statements about artistic provenance without raising any First Amendment concern.]

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43(B)log

APRIL 29, 2022

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. But it didn’t allege facts explaining how REX’s purportedly false advertisements have frustrated its mission or caused it to divert its resources. Zillow, Inc.,

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False Advertising Advertising Advertising Technology 59

43(B)log

APRIL 26, 2023

25 2023) Previous district court opinion allowing Lanham Act false advertising claims to proceed against Microsoft; applying the Article III analysis that doesn’t (yet?) TocMail launched its IP-evasion product, got a patent, and then sued Microsoft for false advertising—all within two months.” TocMail, Inc.

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False Advertising Advertising Advertising IP 59

43(B)log

SEPTEMBER 22, 2023

Geomatrix, LLC v. NSF International, F.4th 4th -, 2023 WL 5925977, No. 22-1947 (6th Cir. 12, 2023) Discussion of opinion below. Geomatrix sells a septic system that substantially differs from those sold by its competitors.

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False Advertising Advertising Advertising Law 59

43(B)log

MARCH 9, 2022

False designation of origin/false advertising: Lasoff v. And it dismissed false advertising claims as “duplicative of his infringement claim.” Amazon.com, Inc., App’x 400, 401 (9th Cir.

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False Advertising Advertising Advertising Trademark 69

43(B)log

JANUARY 23, 2023

OSD’s signal-to-noise statement was literally false because it advertised its amplifier as having 115 decibels on numerous websites even though OSD said in other statements under penalty of perjury that the signal-to-noise ratio was 104 decibels, and it didn’t submit test results or objective evidence that it was 115.

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43(B)log

OCTOBER 29, 2021

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. Nor would amendment be futile.

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43(B)log

OCTOBER 11, 2022

False advertising: Beyond the use of the mark, Boston Suburban allegedly took customer reviews from Boston Carriage and assigned fictitious names to the customers when it copied the reviews onto the “copycat” website.

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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. C21-312 TSZ, 2021 WL 3930694 (W.D. NAR “is the nation’s largest trade association for real estate professionals.”

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43(B)log

MARCH 4, 2022

for falsely advertising them as “flushable” under California’s CLRA/UCL/FAL, NY’s GBL, Illinois’s ICFA, and breach of warranty. Dude Prods., 2022 WL 621815, No. 21-cv-00682 (N.D. 3, 2022) Plaintiffs sued the makers of Dude Wipes [I really must ask: are men ok?]

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Technology & Marketing Law Blog

SEPTEMBER 9, 2022

McNeil. * Three Keyword Advertising Decisions in a Week, and the Trademark Owners Lost Them All. * Competitor Gets Pyrrhic Victory in False Advertising Suit Over Search Ads–Harbor Breeze v. The post Griper’s Keyword Ads May Constitute False Advertising (Huh?)–LoanStreet Reyes & Adler v.

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43(B)log

SEPTEMBER 6, 2023

Shepard & Assoc., Lokring Tech., LLC, 2023 WL 5229803, No. 1:20-cv-02488 (N.D. 15, 2023) Lokring sells fittings for pipes and other transfer systems for fluids and gases, as well as tools used to install them. Its distributors have exclusive territories. Shepard was an exclusive distributor, but the relationship broke down.

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43(B)log

MARCH 9, 2022

The district court then permanently enjoined defendants from engaging in specified false advertising and denied plaintiffs’ request for attorneys’ fees. “The jury also declined to award the equitable remedy of disgorgement of profits, which had been submitted to the jury with the agreement of all parties.”

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43(B)log

OCTOBER 4, 2021

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.” Vining, 2021 WL 4344891, No. 5:20-CV-184-FL (E.D.N.C. Not every word on a label or ad is a mark. What about injury? “[H]ere

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43(B)log

APRIL 25, 2022

pictures of not-good plywood from case Plaintiffs alleged both direct and contributory false advertising. Defendants challenged whether plaintiffs identified any false or misleading statements by defendants. In Baldino’s Lock & Key Serv., Google, Inc., App’x 81 (4th Cir.

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43(B)log

OCTOBER 12, 2021

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). And there was no triable issue on actual injury based on allegedly false advertising to the physicians.

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43(B)log

OCTOBER 11, 2021

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.

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43(B)log

MARCH 4, 2022

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. ThermoLife Int’l LLC v. BPI Sports, LLC, 2022 WL 612669, No. 21-15339 (9 th Cir. ThermoLife’s allegations were too speculative to establish proximate causation.

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JD Supra Law

MARCH 31, 2022

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.

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43(B)log

NOVEMBER 19, 2021

That the producer defrauded consumers is of no moment for antidumping purposes, as the Department lacks jurisdiction to police false advertising violations. But most, if not all, of its promotional, advertising, and sales materials characterized its products as manufactured with maple, a higher-grade and more expensive wood than birch.

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False Advertising Advertising Advertising Law 59

43(B)log

AUGUST 27, 2021

Plaintiffs allegd both direct and contributory false advertising, which requires (1) that the “third party in fact directly engaged in false advertising that injured the plaintiff” and (2) “that the defendant contributed to that conduct either by knowingly inducing, or causing the conduct, or by materially participating in it.”

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