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. Second, the Court recognized that punitive damages are not recoverable under the Lanham Act.

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43(B)log

SEPTEMBER 28, 2021

Roach, meanwhile, makes frequent use of the phrase “The Unstoppable Entrepreneur” and applied to register the phrase for “Business consultancy; Business marketing consulting services.” Entrepreneur’s desire to bring forth a claim for false advertising against a competitor in a similar market is not unusual behavior.”

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False Advertising Advertising Advertising Contracts 45

43(B)log

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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43(B)log

DECEMBER 15, 2023

While the statements may be presented in a small font, possible purchasers could still see them on Defendants’ website and order forms.” This wasn’t mostly a two-player market, and the allegedly false statements did not harm the entire market. On materiality, literal falsity wasn’t enough to presume materiality.

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43(B)log

JUNE 17, 2022

7, 2022) The court upheld a contempt finding based on an underlying false advertising claim. The underlying permanent injunction barred defendants from suggesting in promotional materials that their probiotic contained the same formulation as one marketed by De Simone. and many markets globally.” “So

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43(B)log

JANUARY 17, 2024

Ultra Bond alleged that Safelite violated the Lanham Act by falsely advertising that windshield cracks longer than six inches could not be safely repaired and instead required replacement of the entire windshield. Safelite is the VGRR market leader: in 2016, it had 35.4% of the market; its closest competitor had just 3%.

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43(B)log

JANUARY 19, 2022

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. Consumers and advertisers adequately alleged that Facebook has monopoly power in social network/social media (consumers) and social advertising markets.

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43(B)log

SEPTEMBER 9, 2021

I won’t say much about that, though I do have a big question, but there are also false advertising aspects of the case. The parties compete in the market for adjustable air mattresses and related products. Examples included website links that presented Plaintiffs’ trademarks as identical phrases (e.g. Baxter; 996 F.3d

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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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43(B)log

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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43(B)log

MAY 22, 2023

May 18, 2023) New Vision, an eye-care professional and provider of optical goods and services, including contact lens fittings and contact lens sales with seven brick-and-mortar locations and two websites, brought a putative class action against four online contact-lens retailers for Lanham Act false advertising.

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43(B)log

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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43(B)log

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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43(B)log

APRIL 20, 2023

Lewis didn’t allege that his payment of this referral fee injured his status in the realtor market in any way. The court commented that other realtors could have standing: To be sure, it is not difficult to imagine a potential commercial injury to realtors arising from Acuity’s allegedly false advertising.

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43(B)log

APRIL 29, 2022

Addressing only the false advertising claim: Given that Hawrych explicitly alleged that he developed the products at issue, Lash-Global’s advertisements stating that Dr. Hawrych developed their products were not plausibly false or misleading. Thus, the false advertising claim would be dismissed.

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LexBlog IP

JANUARY 31, 2024

What does this mean for marketers who may be interested in producing advertising content using copyrighted works that have entered the public domain? They should closely consider whether these proposed uses present trademark and false advertising risks.

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Public Domain Trademark Copyright False Advertising 52

43(B)log

DECEMBER 1, 2022

28, 2022) Outlaw lost its bid for a preliminary injunction enjoining Santos, aka OSD Audio, from selling products containing user manuals that allegedly infringed Outlaw’s copyright, falsely represented OSD Audio products’ specifications, and falsely represented that OSD Audio and Outlaw’s products are similar. Prager Univ.

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43(B)log

SEPTEMBER 6, 2021

Is that true for false advertising plaintiffs? Here, the parties compete in the market for addiction treatment. A jury found defendants liable for false advertising through a purportedly unbiased, independent site. So, is damage to the plaintiff part of the cause of action or no?

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43(B)log

AUGUST 20, 2021

Drug manufacturers still need an NDA or ANDA to sell their drugs, but, during the pendency of an open DESI proceeding, the FDA permits the subject product or drug to remain on the market. They are therefore allowed on the market during the DESI review pendency and qualify as pharmaceutically equivalent.

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43(B)log

MARCH 18, 2022

Brough Brothers claims to be the “first and, and presently, the only African-American owned bourbon distillery in the Commonwealth of Kentucky.” Fresh Bourbon counterclaimed for Lanham Act false advertising. But the Brough Brothers bourbon currently on the market does have some association with Kentucky. Coca-Cola Co.,

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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. Beer Nuts, Bulls’ Eye v.

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43(B)log

MARCH 29, 2024

Further, internal communications showed that Gerber actively endeavored to make an allergy claim with these ads: Gerber asked its advertisers in a “communications brief” to “[c]reate a strong link between GSG. Gerber’s marketing team described “being challenged to find ways to push the envelope with bringing the allergy message forward.”

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43(B)log

DECEMBER 23, 2021

This court answers yes, though limits the effect of that by applying what looks like ordinary false advertising analysis. Through a licensing agreement, Hilti also markets and sells the Firestop Box Insert based in part on that same patent. And literally false statements presumptively cause competitors harm.”

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Technology & Marketing Law Blog

AUGUST 30, 2023

Nursing CE Central” is a descriptive mark with “a weak secondary meaning… the plaintiff makes no meaningful showing that the public, or even those in the market in which it competes, readily recognizes its name.” ” Marketing channel. Allied Modular * Griper’s Keyword Ads May Constitute False Advertising (Huh?)–LoanStreet

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Technology & Marketing Law Blog

JANUARY 8, 2024

Likewise, if a customer went to the Toyota website, searched for “Honda Civic” and was presented with a list of cars clearly labeled as Toyota Corollas, that person could not think that such presented options included a Honda Civic. Bye, Goff * Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v.

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Trademark Advertising Advertising False Advertising 78

43(B)log

OCTOBER 10, 2023

DealMaker alleged that defendants stole its trade secrets and also alleged violation of state and federal false advertising law. Deception would be presumed for literally false statements. Defendant Marble is Issuance’s co-founder and chief executive officer.

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The IPKat

MARCH 7, 2024

This Kat is delighted to present a review of Propriété intellectuelle et développement durable / Intellectual Property & Sustainable Development, edited by Prof. Unfortunately, some of these disputes ended in out-of-court settlements, leaving the circular economy market without clear judicial guidance.

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Intellectual Property False Advertising Editing Settlement 57

43(B)log

MARCH 4, 2024

29, 2024) Previously, after a bench trial, the court found Albion liable for falsely advertising its caulk dispensing guns as “Made in the USA.” After more evidence, the court found that Albion adequately supported its unclean-hands defense—that Newborn had also made false USA origin claims—until early 2007.

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43(B)log

JUNE 14, 2022

May 27, 2022) Previously, the district court found that AB’s anti-Miller/Coors campaign was false advertising “to the extent it was designed to mislead consumers into believing corn syrup remained in Miller Lite and Coors Light products after the brewing process was completed.” There wasn’t an imminent risk of new, now-false ads.

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43(B)log

SEPTEMBER 20, 2021

Thus, the plaintiff was not going to get a preliminary injunction against its competitor for falsely advertising 6% nicotine content. Bidi’s lab reports found that Vaperz’s stick, which advertises 6% nicotine, had an average nicotine level between 3.06% to 3.43%. It brought state and federal false advertising claims.

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43(B)log

OCTOBER 1, 2021

Whole Foods Market Service, Inc., Whole Foods began purchasing small quantities of basil from them and selling the product in Whole Foods Market stores in the San Diego area in 2007. False advertising: Plaintiffs didn’t plausibly plead a false or misleading statement in a commercial advertisement or promotion.

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43(B)log

DECEMBER 22, 2023

As far as the Court can tell, … PIRG does no work addressing false or misleading labeling for bed sheets, textiles more generally, or even false advertising as a category. So what was the problem? The cy pres doctrine simply allows for a distribution that achieves those benefits indirectly.”

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43(B)log

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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43(B)log

DECEMBER 1, 2022

Whether GSK engaged in a deceptive practice or false advertising was “well within the conventional experience of judges and only indirectly involves technical matters regarding vaccine efficacy which are within the ambit of the agency’s expertise.”

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43(B)log

JUNE 15, 2022

19, 2022) The parties compete in the market for energy drinks. VPX (Vital) makes BANG, which now contains creatyl-l-leucine (CLL), “a novel ingredient marketed under the trademark ‘Super Creatine.’ … Defendants claim that CLL is more stable and more bioavailable than other forms of creatine.”

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43(B)log

NOVEMBER 28, 2022

Marketing, Sales Practices & Prods. 23, 2022) Manufacturers lose an opportunity to create a circuit split on whether overpaying for a product that generally has a defect, which defect did not manifest for the class plaintiffs but plausibly reduced the value of the product, provides standing for a false advertising monetary relief claim.

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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.

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