Technology & Marketing Law Blog

AUGUST 11, 2022

Rebecca Tushnet and I are pleased to announce the sixth edition of our casebook, Advertising & Marketing Law: Cases & Materials. Chapter 2: What is an Advertisement? Chapter 3: False Advertising Overview. Chapter 9: False Advertising Practice and Remedies. Price: $12.

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Editing Advertising Advertising Marketing 119

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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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Technology & Marketing Law Blog

DECEMBER 10, 2023

Amazon is an ICS provider: Plaintiff alleges that Defendants “market” and “sell” products to retail consumers “through internet websites.” “Plaintiff does not allege that any of the products that purportedly contain false advertising use its marks “Planet Green” or “Doorstepink.”

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False Advertising Advertising Advertising Marketing 63

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FEBRUARY 26, 2024

The advertising bit: Defendants allegedly misled New York customers into “believing that unfinished frames and receivers are legal workarounds to New York’s gun control laws, as well as federal law.” Defendants contended that marketing unfinished frames and receivers as “legal” was protected by the First Amendment.

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False Advertising Advertising Advertising Marketing 59

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SEPTEMBER 28, 2021

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.” Crocs, Inc. Effervescent, Inc., 2021 WL 4170997, No. 06-cv-00605-PAB-KMT, No. 16-cv-02004-PAB-KMT (D.

False Advertising 83

False Advertising Advertising Advertising Invention 83

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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. Also, we really need a federal anti-SLAPP law. This was first used by VSL, marketed as VSL#3. Maybe it does, but I have doubts.

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False Advertising Advertising Advertising Reporting 45

Delaware Intellectual Property Litigation Blog

JANUARY 8, 2022

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. The Court granted Defendant’s motion for two reasons. A copy of the Memorandum Opinion is attached.

False Advertising 68

False Advertising Advertising Advertising Law 68

Technology & Marketing Law Blog

SEPTEMBER 9, 2022

The court cites a mix of competitor lawsuits (which this is clearly not) and some antiquated 20+ year old griper precedent that are no longer credible law since the more modern approaches to gripers. How can Troia vie for a “market” when the court already said he “is not offering a good or service”???

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False Advertising Advertising Advertising Trademark 97

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AUGUST 22, 2022

The statements were “commercial advertising meant to sell a product, and generally there ‘can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public.’” Not all marketing of artistic works is noncommercial speech. There was also no copyright preemption. citing Rezec v.

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False Advertising Advertising Advertising Artistic Work 59

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OCTOBER 29, 2021

Here, the court granted leave to amend to add a false advertising claim. One of its most popular products is a line of copper-infused compression clothing, marketed under the trademark “Copper Fit,” allegedly designed to alleviate muscle and joint soreness and pain. Nor would amendment be futile.

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OCTOBER 11, 2022

Boston Carriage’s principals voluntarily shared their business knowledge with Boston Suburban, including Boston Carriage’s business and marketing strategies and its online presence.” This included a state-law dilution claim, since state law required only distinctiveness.

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False Advertising Advertising Advertising Copying 83

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NOVEMBER 19, 2021

to take note: Commerce’s investigation revealed that a Chinese producer markets and sells its wooden cabinets in the United States as maple even though they are made of birch, a less costly grade of wood. Normal value” is generally “the price a producer charges in its home market.” market to the detriment of domestic industry.

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False Advertising Advertising Advertising Marketing 59

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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. Failing Lexmark also meant that plaintiffs failed to meet the standing requirements for common law unfair competition and Florida Deceptive and Unfair Trade Practices Act claims.

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False Advertising Advertising Advertising Licensing 72

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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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False Advertising Advertising Advertising Licensing 59

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APRIL 25, 2022

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.” pictures of not-good plywood from case Plaintiffs alleged both direct and contributory false advertising.

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AUGUST 9, 2021

TFL’s website allegedly provides a variety “Affiliate Marketing Resources,” and its marketing director’s LinkedIn profile states that his duties include “Run[ning] and monitor[ing] marketing campaigns.” Defendants argued that they merely licensed legitimate, commercial software for lawful use only.

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False Advertising Advertising Advertising Designs 69

LexBlog IP

JANUARY 8, 2022

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. ” Id. The Court granted Defendant’s motion for two reasons.

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False Advertising Advertising Advertising Law 52

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SEPTEMBER 22, 2023

NSF certification is practically required for residential septic systems; at least 37 states have adopted its requirements into law. Unusually, but soundly, the court proceeded to analyze the Michigan common law unfair competition claim separately. Michigan common law does not rely on the words of a statute, let alone a federal one.”

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False Advertising Advertising Advertising Business 59

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SEPTEMBER 6, 2023

Toyota USA sued Allen for grey marketing in violation of the Lanham Act and related claims, asserting that material differences included the existence of a manufacturer-backed warranty, the shipping and packaging of the parts, and the appearance and condition of the parts. The court declined to dismiss the counterclaims.

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Marketing Marketing False Advertising Advertising 59

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OCTOBER 6, 2021

In re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices & Antitrust Litig., 17, 2020) A lot of stuff here; I will ignore the non-false advertising related aspects of this mostly antitrust case. Sanofi argued that none of its advertisements or promotional materials made any of these assertions.

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JANUARY 3, 2024

CCM counterclaimed for abuse of process and for violations of the Lanham Act and related state laws; one ex-employee also brought counterclaims against loanDepot for breach of contract and breach of the implied covenant of good faith and fair dealing. The false association/coordinate state law claims survived.

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False Advertising Cease and Desist Advertising Advertising 59

Technology & Marketing Law Blog

MAY 13, 2023

This is another lawsuit between personal injury law firms over competitive keyword ads. The plaintiff is Nicolet Law, based in Hudson, Wisconsin with 14 offices in Wisconsin and Minnesota. However, note that Nicolet Law, a surname, isn’t registered with the USPTO and there may be questions about its secondary meaning.

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Law Advertising Advertising False Advertising 91

IP Law 360

SEPTEMBER 14, 2022

A marketing expert hired by Monster Energy Co. told a California federal jury Wednesday considering false advertising claims against Vital Pharmaceuticals Inc. that the marketing of Bang energy drink's "super creatine" is a key differentiator for the beverage and makes other drinks "less desirable" to some consumers.

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Marketing Marketing False Advertising Advertising 52

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MARCH 21, 2024

The Roundtable is designed to be a forum for the discussion of current trademark, false advertising, and right of publicity scholarship, covering a range of methodologies, topics, and perspectives. The Roundtable will cover the travel and lodging expenses for invited authors.

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False Advertising Trademark Advertising Advertising 64

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AUGUST 20, 2021

Shingle Savers counterclaimed, alleging, among other things, false advertising under the Lanham Act and violation of the Ohio Deceptive Trade Practices Act. Moreover, the alleged misrepresentations concerned the nature of Roof Maxx’s own roofing Product and were presented in official marketing material and conversations.

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IP Law 360

MARCH 21, 2024

A swimming pool equipment manufacturer is looking to permanently ban a competitor from using deceptive marketing techniques on Amazon after a federal jury in North Carolina slapped the rival company with a nearly $15 million verdict for false advertising and unfair business practices.

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False Advertising Advertising Advertising Marketing 52

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AUGUST 7, 2023

2, 2023) A smoothly written opinion: As the complaint tells it, Paul Mitchell has long marketed its business and its products as “cruelty-free.” Although not all the purchased products appeared in the Chinese import registry, “in its marketing, Paul Mitchell doesn’t just advertise that it sells ‘cruelty-free’ goods.

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Marketing Marketing False Advertising Advertising 52

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SEPTEMBER 30, 2021

22, 2021) I find the vanilla class actions fascinating because they are starting to reject surveys, pushing this area of the law towards a normative vision of what’s misleading to a reasonable consumer. Westbrae Natural, Inc., 2021 WL 1580827, No. 20-cv-03221-JSC (N.D. Such an inference is just too far a reach.”

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False Advertising Advertising Advertising Marketing 59

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SEPTEMBER 26, 2022

20, 2022) Plaintiff PCC sued NABP, a nonprofit whose membership consists of state/similar political unit boards of pharmacy (some other pharmacy associations/partnerships are also separate defendants), alleging violations of the Sherman Act and false advertising under the Lanham Act. pharmacies.”

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Marketing Marketing False Advertising Advertising 56

Patently-O

FEBRUARY 12, 2024

Jordan is a third-year law student at the University of Missouri and a registered patent agent. Before law school, he was a greenskeeper at a local golf course. Guest Post by Jordan Duenckel. He has an extensive background in chemistry and food science.

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False Advertising Invention Advertising Advertising 101

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AUGUST 16, 2021

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. This opinion considered only the marketing defendants.

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False Advertising Advertising Advertising Contracts 72

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NOVEMBER 27, 2023

Marketing, Sales Practices & Products Liab. SoClean is a dominant player in the market for medical devices that sanitize continuous positive airway pressure machines (CPAPs), which treat sleep apnea and respiratory conditions. And, they continued, SoClean was illegally marketing its devices. In re SoClean, Inc., 22-542 (W.D.

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Advertising Advertising Marketing Marketing 59

Technology & Marketing Law Blog

MARCH 6, 2023

The false advertising claim fails because Lops didn’t show that the videos “are commercial speech and made for the purpose of influencing consumers to buy YouTube’s goods or services.” YouTube appeared first on Technology & Marketing Law Blog. ” Cites to Tiffany v. eBay and Sellify v.

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Trademark False Advertising Advertising Advertising 90

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DECEMBER 16, 2022

12, 2022) Plaintiffs sued defendants for copyright infringement, violation of the Lanham Act, breach of contract, and violation of unfair competition law; copyright and breach of contract claims survived a motion to dismiss but the others didn’t. CV 22-4735-RSWL-Ex (C.D. Breach of contract claims survived.

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Marketing Marketing False Advertising Contracts 59

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MARCH 18, 2022

The parties compete in this market. EnChroma allegedly advertises that its lenses are “patented,” but Eyenavision alleged that EnChroma’s lenses do not practice the relevant patent and therefore brought false marking, Lanham Act false advertising, and unfair competition claims.

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False Advertising Patent Advertising Advertising 72

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JANUARY 18, 2022

12, 2022) The parties compete in the market for wood protection products. The court denied the motion to dismiss the Lanham Act claims but kicked out the coordinate Virginia state law claims. Likewise, ISK adequately alleged contributory false advertising claims against PMG. There’s a magazine for pallets!

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False Advertising Advertising Advertising Law 59

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SEPTEMBER 5, 2023

Core-Brace alleged both false advertising and false association from the statements in the design manual and related documents. The statement “[p]roduce capacity of over 5000 BRBs per year” was not literally false. Similarity of products/marketing favored Core-Brace, because the parties compete.

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False Advertising Law Advertising Advertising 59