43(B)log

FEBRUARY 3, 2024

Mary Katherine Amerine, Reasonably Careless Consumers in TM & False Advertising How do courts treat consumers in TM and false advertising cases? False advertising uses v different framework: consider the challenged ad as a whole, including disclaimers and qualifying language. And can law make them do it?

False Advertising 49

False Advertising Contracts Branding Brands 49

43(B)log

SEPTEMBER 20, 2021

3, 2021) The parties compete in the market for custom landscape design services. “[I]n Natorp’s removed all of his photos from its website shortly after he complained, but the photos allegedly remained “online at various social media outlets including Natorp’s private website, Facebook, and Pinterest.” McCleese v. Natorp’s, Inc.,

Copying 64

Copying False Advertising Social Media Advertising 64

43(B)log

MARCH 28, 2024

Princeton insured Wonderland from 2016-2018 (with a broad exclusion for defamation, invasion of privacy, and various forms of advertising injury in the second year called the Exhibitions and Related Marketing Exclusion), and agreed to defend the club but reserved the right to deny insurance coverage.

Advertising 64

Advertising Advertising Settlement Contracts 64

43(B)log

MAY 2, 2022

28, 2022) Chanel sued What Goes Around Comes Around (WGACA), alleging trademark infringement, false advertising, false association/endorsement, and related NY GBL claims for deceptive/unfair trade practices and false advertising. Until 2017, it also used the hashtag #WGACACHANEL in its social media posts.

False Advertising 59

False Advertising Advertising Advertising Social Media 59

Copyright Lately

MARCH 31, 2024

To make matters worse, State Farm’s resident do-gooder “Jake” lands a Fonzie-style smack on the Crystal Castles machine to get it working—”suggesting falsely and disparagingly to consumers that Atari’s cabinets are low-quality, faulty, and/or unreliable.”

Copyright 80

Copyright Fair Use Social Media Artwork 80

43(B)log

APRIL 26, 2023

The parties compete in the market for skid steer attachments and other products. Creager sells Montana post drivers (made in China) that compete with the Texas post drivers sold by IDT (advertised as made in the USA). The parties had other disputes, including accusing each other of posting false reviews of the other.

Fair Use 64

Fair Use Advertising Advertising False Advertising 64

Trademark and Copyright Law Blog

JANUARY 14, 2021

Advertising can take many forms, including statements about a company’s products on websites and social media platforms. In this 60-minute webinar, designed exclusively for in-house counsel, you will learn how you can protect your company against legal challenges based on its advertising practices.

Advertising 40

Advertising Advertising False Advertising Social Media 40

Technology & Marketing Law Blog

DECEMBER 14, 2022

If the clinic is falsely claiming that he is, that’s false advertising and possibly defamation. Potential irony alert: 50 Cent has taunted Diddy for getting botox … When, if ever, can a company share a photo of a customer/friend on social media without consent? Case Citation : Jackson v. The complaint.

Social Media 115

Social Media False Advertising Advertising Advertising 115

43(B)log

FEBRUARY 26, 2024

23, 2024) Plaintiffs alleged that defendants conspired to inflate the US News ranking of USC Rossier School of Education by submitting inaccurate or incomplete data to US News and market the resulting ranking to the public. As Plaintiffs note, if the law were otherwise, “any business that submits false information to get a certification.

Advertising 59

Advertising Advertising False Advertising Marketing 59

43(B)log

OCTOBER 6, 2021

They brought claims under the Lanham Act, Wisconsin’s privacy statute, and Wisconsin’s common law of negligence. American Girl applied for trademarks on a space-themed doll named Luciana Vega, which it began marketing in 2018 as its “Girl of the Year” doll. Not to mention that “dilution” is not the same thing as false endorsement!

Law 59

Law Privacy False Advertising Social Media 59

43(B)log

MARCH 21, 2024

Peacock alleged that Pabst violated consumer protection law by marketing “The Original Olympia Beer” as using naturally filtered, artisan water from Tumwater, Washington (a suburb of Olympia, Washington) “despite the product being brewed elsewhere in the country using lower quality water and brewing methods.” Pabst Brewing Co.,

Social Media 59

Social Media Marketing Marketing Designs 59

43(B)log

SEPTEMBER 1, 2021

Mandabach sued under §43(a) and coordinate state law claims and sought cancellation of a trademark registration. It submitted 14 social media posts “which it contends shows consumers and retailers attributed a particular source to Defendants’ liquor and Plaintiff’s television show.” That favored a confusion finding.

Social Media 93

Social Media Television False Advertising Artistic Work 93

43(B)log

AUGUST 17, 2021

Facts in the light most favorable to the plaintiffs: Each of the plaintiffs has a significant number of followers on various social media platforms, ranging from greater than ten thousand to several million, and most are “considered social media influencers.” The court was guided by Electra v. 59 Murray Enterprises, Inc.,

Social Media 59

Social Media False Advertising Advertising Advertising 59

The IPKat

JUNE 13, 2022

The non-fungible part means that it is something that has unique value based on the buyer’s sentiment and/or market dynamics. In practice, what this means is that a whole new market has been opened-up as NFTs have provided a system that has enabled the sale of digital items by transforming them into collectables, such as a tweet.

Non-Fungible Tokens 140

Non-Fungible Tokens Advertising Advertising Ownership 140

43(B)log

FEBRUARY 17, 2022

Was this commercial advertising or promotion? Elysium argued that Right of Assembly was “a marketing website for Tru Niagen for which ChromaDex pays commissions to Shelly Albaum for Tru Niagen customers referred through the website.” Thus, any false advertising claim would lie against Albaum, not [directly] against ChromaDex.

Advertising 80

Advertising Advertising False Advertising Marketing 80

43(B)log

MARCH 22, 2023

20, 2023) The parties compete in the supplement market using direct marketing, so compete in both consumer supplement sales and in sales representative recruitment. Usana incorporates the Guide into its marketing training. Usana characterizes payments to NutriSearch and MacWilliam as marketing expenses. Ariix LLC v.

Editing 59

Editing False Advertising Social Media Marketing 59

43(B)log

JULY 6, 2022

Marketing Sales Practices & Prods. Plaintiffs moved to certify four classes of purchasers of JUUL products on “theories that defendants’ marketing of JUUL was unlawfully deceptive, JUUL was unlawfully marketed to youth, and JUUL products are not fit for ordinary use.” In Re Juul Labs, Inc., I don't even have a RICO tag!

Social Media 59

Social Media Marketing Marketing Advertising 59

Technology & Marketing Law Blog

JUNE 12, 2022

A click fraud case against a competitor: Motogolf fails to state a false advertising claim under the Lanham Act. First, Motogolf does not plausibly allege that the defendants’ clicking activity constitutes commercial advertising. ” Arizona Board of Regents v. 21-16525 (9th Cir. May 13, 2022). Motogolf.com, LLC v.

Trademark 90

Trademark Advertising Advertising False Advertising 90

LexBlog IP

NOVEMBER 17, 2021

Kaira District Co-Operative Milk Producers’ Union Limited and Gujarat Cooperative Milk Marketing Federation Ltd. Kaira also owns common law design marks which are displayed on the websites www.amul.com and www.amuldairy.com. AMUL Canada , 2021 FC 636 is the most recent example of the effectiveness of default judgment.

False Advertising 40

False Advertising Social Media Trademark Branding 40

43(B)log

AUGUST 3, 2023

How do other areas of law treat relevance of death? Dignitary interests: false light, IIED, privacy typically expire w/person. Consumer protection: laws meant to protect consumers, death doesn’t matter—Princess Diana’s image on collectible plates—TM claim was maintainable. So too w/false advertising. Body parts.

Registration 52

Registration False Advertising Advertising Advertising 52

43(B)log

FEBRUARY 24, 2024

Focused on Amazon: free riding on gov’t mechanisms, particularly TM law, to communicate to gov’t not to regulate it—product liability, intermediary liability. Affecting TM law (as set forth in new paper with Mark McKenna, which is excellent). Ex parte: the law is whatever the judge will sign. It’s like with CPB. Sheff: yes.

Fair Use 45

Fair Use Branding Brands Branding 45

43(B)log

DECEMBER 1, 2022

Viacom also engaged a market research company to learn more about “southern beach culture,” which suggested that the term Flora-bama was “either unknown or though [sic] to refer strictly to the bar.” An online article used photos of the Lounge in its coverage of the series, and MGFB also submitted social media posts.

Artistic Work 64

Artistic Work Television Trademark Trademark Law 64

43(B)log

OCTOBER 19, 2023

I’ll focus, as usual, on the false advertising bits and ignore the securities law parts. Initially, the court denied the motion to dismiss consumer protection law claims simply because the complaint also alleged violation of state securities laws and consumer protection laws don’t cover securities.

Due Diligence 64

Due Diligence False Advertising Social Media Advertising 64

43(B)log

JULY 21, 2023

but also narrows the issues somewhat; the larger infringement, cybersquatting, and false advertising claims can’t be resolved on summary judgment. When it was an authorized Axon distributor, LHB’s owner registered various domain names including taser.org and tasers.org to help it market Tasers online.

False Advertising 52

False Advertising Advertising Advertising Social Media 52

43(B)log

AUGUST 9, 2021

On social media: "Were U planning on telling UR customers" [to switch before they lose service]? Comment: This is an interesting question given that TM/advertising people tend to define goodwill differently than general business valuation people, especially in the TM/false advertising context. In re Alert Hldgs.,

False Advertising 119

False Advertising Advertising Advertising Law 119

SpicyIP

DECEMBER 30, 2023

The decisions in the first category, i.e., Top 10 IP Cases/Judgements (Topicality/Impact) reflect those that we thought were important from a topical point of view and were covered by the media in some way owing to the importance of parties litigating or the issue being considered or for impact on industry and innovation/creativity ecosystem etc.

IP 124

IP Copyright Trademark Intellectual Property 124

43(B)log

AUGUST 3, 2023

Matthew Sag, Copyright Safety for Generative AI Not addressing whether training is always fair use in every circumstance; explain how generative AI fits w/in existing law (nonexpressive uses) and identify best practices to make generative AI fairer. TM law should facilitate disclosure or it will fall behind market. Fresh start.

Social Media 52

Social Media Fair Use Advertising Advertising 52

43(B)log

FEBRUARY 3, 2023

We can make things excludable through tech and law, making things that previously looked like public goods providable by private markets. Book project: how do we reconcile that with our intuitions about markets and distributive justice? But should you do that? Depriving people of benefits that don’t cost anything to provide.

False Advertising 45

False Advertising Trademark Advertising Advertising 45

43(B)log

NOVEMBER 8, 2023

Malwarebytes, which allowed a false advertising claim to proceed based on one software provider’s use of the terms “malicious” and “threat” to describe its alleged competitor’s software, despite a dissent raising free speech arguments. Then I’ll talk about the 9 th Circuit case Enigma Software v. Trademark: In Jack Daniel’s v.

False Advertising 75

False Advertising Advertising Advertising Trademark 75

43(B)log

OCTOBER 4, 2021

Another way to put it is that aesthetic functionality requires you to have an understanding of the definition of the market in which other clothing makers should be free to compete. This change in the ease of getting relief interacts with the substantive scope of TM law in ways that may prove challenging.

IP 94

IP Trademark Advertising Advertising 94

LexBlog IP

MARCH 1, 2022

Last month, as part of BakerHostetler’s “Look Back, Look Ahead: Advertising and Marketing Law in 2021 & 2022” webinar series, partners Craig A. While penalties vary by state, some states’ laws authorize civil penalties of up to $10,000 per violation. 5: Marketing to Minors. Takeaway No.

Social Media 52

Social Media Privacy Advertising Advertising 52