43(B)log

AUGUST 9, 2021

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. Does its awareness of the stay mean that its false advertising violates the automatic stay? In re Alert Hldgs.,

False Advertising 119

False Advertising Advertising Advertising Law 119

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. 50 Clinical studies prove the SlimFast Plan helps you effectively lose weight."

False Advertising 59

False Advertising Advertising Advertising Settlement 59

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.

False Advertising 59

False Advertising Advertising Advertising Marketing 59

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. LHB currently owns 64 domain names containing references to Taser or Axon Taser models. “ Does that sound like the claims against the domain names might be lached?

False Advertising 52

False Advertising Advertising Advertising Social Media 52

43(B)log

SEPTEMBER 28, 2021

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.

False Advertising 45

False Advertising Advertising Advertising Contracts 45

IP Tech Blog

MARCH 6, 2023

JC Penny, for example, has been hit with a class action lawsuit in the Southern District of California over its alleged advertising practice of using “false reference pricing.” The products, Carranza claims , were never sold at the listed reference price as advertised. Do the claims have merit?

False Advertising 62

False Advertising Advertising Advertising Settlement 62

43(B)log

AUGUST 9, 2021

But under Twiqbal , plaintiff alleged more: They specifically advertised their ability to help companies who had been “shut down” by helping them “get real merchant accounts” and providing “chargeback mitigation.”

False Advertising 69

False Advertising Advertising Advertising Designs 69

43(B)log

MAY 19, 2023

Roblox sued for copyright infringement, false advertising, trademark infringement, false association and false designation of origin, trade dress infringement, intentional interference with contractual relations, breach of contract, and false advertising and unfair competition under California law.

Copying 94

Copying False Advertising Social Media Advertising 94

43(B)log

JUNE 17, 2022

7, 2022) The court upheld a contempt finding based on an underlying false advertising claim. Also, a press release that discussed separate litigation in Italy about who owned VSL#3’s bacterial strains, unfairly compared VSL#3 and Visbiome referred to plaintiffs’ “aggressive efforts to sell their competing, generic probiotic product.”

False Advertising 64

False Advertising Advertising Advertising Litigation 64

LexBlog IP

MARCH 6, 2023

JC Penny, for example, has been hit with a class action lawsuit in the Southern District of California over its alleged advertising practice of using “false reference pricing.” The products, Carranza claims , were never sold at the listed reference price as advertised. Do the claims have merit?

False Advertising 52

False Advertising Advertising Advertising Settlement 52

43(B)log

DECEMBER 15, 2023

In Sybersound , the Ninth Circuit explained that the “nature, characteristics, and qualities” of the karaoke recording referred to things like the “quality of its audio and visual effects.” Such attributes would affect the consumer’s experience rather than the rights of third parties.”

False Advertising 45

False Advertising Advertising Advertising Intellectual Property 45

43(B)log

OCTOBER 6, 2021

17, 2020) A lot of stuff here; I will ignore the non-false advertising related aspects of this mostly antitrust case. The court says the usual not-good things about false advertising’s relationship to antitrust, unfortunately: Deceptive speech usually doesn’t violate antitrust laws. 17-md-2785-DDC-TJJ (D.

False Advertising 45

False Advertising Advertising Advertising Marketing 45

43(B)log

SEPTEMBER 16, 2021

On GitHub, the landing page was called “ONgDB – Neo4j Enterprise Fork: Graphs for Everyone,” contained numerous references to Neo4j throughout, and was very similar to that of Neo4j EE. Summary judgment granted on state and federal false advertising claims. False designation of origin: Yep.

False Advertising 64

False Advertising Advertising Advertising Licensing 64

43(B)log

AUGUST 11, 2021

Although in the copyright decision, the court made reference to “rather surprising oversights,” UpCodes corrected issues when notified by ICC. UpCodes, Inc., 2021 WL 1236106, Nos. 6261 (VM) & 20 Civ. 4316 (VM) (S.D.N.Y.

False Advertising 83

False Advertising Copying Advertising Advertising 83

43(B)log

OCTOBER 9, 2023

million consent judgment, which defendants touted in a press release and advertised on Zinus’s website even after the court vacated the stipulated judgment. Courts have generally harmonized the Lanham Act with the Patent Act by requiring bad faith before claims about patent infringement can constitute false advertising.

False Advertising 104

False Advertising Patent Infringement Patent Advertising 104

43(B)log

SEPTEMBER 10, 2021

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. 15, 2021) Logistick sells disposable load bars which are used to secure cargo freight during transport.

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JANUARY 3, 2024

I’m only going to discuss the false association/false advertising bits; as to the latter, state law provides more protection than federal because of the “commercial advertising or promotion” requirement for Lanham Act false advertising. The false association/coordinate state law claims survived.

False Advertising 59

False Advertising Cease and Desist Advertising Advertising 59

43(B)log

JUNE 30, 2022

Could ULC Monastery show cognizable harm? On the Lanham Act claim, that required showing sales diversion or lessening of goodwill. The Ninth Circuit has “generally held. that ‘when a plaintiff competes directly with a defendant, a misrepresentation will give rise to a presumed commercial injury that is sufficient to establish standing.’”

False Advertising 59

False Advertising Advertising Advertising Business 59

43(B)log

SEPTEMBER 21, 2021

References in Columbia’s marketing materials to “the on-campus experience” were often mere puffery “too vague to be enforced as a contract,” such as a statement in a University publication that “Columbia is an in-person kind of place.”

False Advertising 59

False Advertising Contracts Advertising Advertising 59

43(B)log

JULY 24, 2023

Amgen argued that there was no impact because the ads didn’t refer to Sandoz or Ziextenzo, and Sandoz couldn’t identify a single patient, prescriber, or insurer that would have used Ziextenzo but chose Onpro because of the advertising claims. And economic analysis is a valid means of proving an injury caused by false advertising.

False Advertising 92

False Advertising Advertising Advertising Marketing 92

43(B)log

APRIL 15, 2024

The court denies a preliminary injunction on the trademark claims based on lack of likely success on the merits, but declines to dismiss either infringement or false advertising claims. Indeed, the evidence shows that, in ordinary parlance, the term “good meat” is used routinely to refer to the concept of sustainably sourced meat.

False Advertising 64

False Advertising Advertising Advertising Marketing 64

43(B)log

JANUARY 27, 2023

24, 2023) WS sued Wayfair, alleging patent infringement, Lanham Act false advertising, Massachusetts and California statutory unfair competition and Massachusetts false advertising based on alleged copying of West Elm products. Wayfair moved to dismiss the false advertising and unfair competition claims.

False Advertising 59

False Advertising Advertising Advertising Designs 59

43(B)log

MARCH 7, 2024

Shkipin’s amended false advertising counterclaim fails again. None of HomeLight’s statements allegedly disparaged or even referred to Shkipin’s business.

Advertising 59

Advertising Advertising False Advertising Business 59

Technology & Marketing Law Blog

DECEMBER 9, 2022

Someone has referred you here because you’ve said something wrong about the laws related to web scraping in the United States. You’ve Been Referred Here Because You’re Wrong About The First Amendment.” The prior part explained the most recent ruling, a devastating but not unexpected loss for hiQ. Don’t worry! You’re not alone.

Blogging 117

Blogging Law Contracts Cease and Desist 117

43(B)log

SEPTEMBER 30, 2021

Contributory false advertising under the Lanham Act: The Ninth Circuit has held that for contributory liability, “a defendant must have (1) ‘intentionally induced’ the primary infringer to infringe, or (2) continued to supply an infringing product to an infringer with knowledge that the infringer is mislabeling the particular product supplied.”

False Advertising 59

False Advertising Advertising Advertising Contracts 59

43(B)log

JANUARY 18, 2022

Moreover, an ad on a public Facebook page that referred customers to the data sheet was a commercial advertisement within the meaning of the Lanham Act; it was intended to bolster sales and was “sufficiently disseminated” to fall within §43(a)(1)(A). Likewise, ISK adequately alleged contributory false advertising claims against PMG.

False Advertising 59

False Advertising Advertising Advertising Law 59

43(B)log

NOVEMBER 27, 2023

Design Gaps had in the past conducted projects for Peters Custom Homes including the design and construction of residential cabinetry in homes referred to as “Quail Hollow North” and “Lake Wylie.” And the complaint was full of references to Design Gaps’ copyrighted designs and defendants’ “copying.”

Copying 59

Copying False Advertising Designs Design 59

43(B)log

OCTOBER 11, 2023

Plaintiff alleged that Sazerac designed this malt version to look just like the original one, misleading consumers in violation of New York laws on deceptive practices and false advertising. Sazerac didn’t explain why it couldn’t use “Malt Beverage with Natural Flavors” (or some other general reference) instead.

False Advertising 59

False Advertising Advertising Advertising Designs 59

43(B)log

MARCH 14, 2024

11, 2024) I have a long-running interest in Rule 68 offers of judgment, and this case involves an interaction with false advertising law! Crocs, Inc., 2024 WL 1051951No. 23-cv-01790-PAB-KAS (D. The parties compete in the shoe market. In 2006, Crocs sued now-plaintiff Double Diamond and Dawgs, its affiliate.

False Advertising 59

False Advertising Advertising Advertising Branding 59

43(B)log

AUGUST 7, 2023

3, 2023) Potentially interesting pretrial rulings in this false advertising/TM case: Goli’s motion to exclude the testimony of Dr. Jerry Wind was granted in part to preclude him from opining on the ultimate question of likely confusion or balancing the trademark infringement factors, which was for the jury. GOLO, LLC v. 20-667-RGA (D.

False Advertising 91

False Advertising Advertising Advertising Law 91

43(B)log

MARCH 6, 2024

Qoins also referred to SouthState in its responses to customer reviews, saying it was responsible for withholding funds. This was all allegedly false and misleading (given that Qoins customers were not SouthState customers, they weren’t FDIC insured). But SouthState did have standing for a false advertising claim.

False Advertising 45

False Advertising Advertising Advertising Business 45

43(B)log

AUGUST 25, 2021

This was allegedly still false and misleading, and First Databank allegedly falsely advertised that it “compile[s]” the relevant information in its database and for its coding determinations from the FDA and from manufacturers, such as Alfasigma. The database does not list any of Defendant’s own products or additional services.

False Advertising 72

False Advertising Advertising Advertising Designs 72

43(B)log

MARCH 29, 2024

The asterisk following “dermatitis” referred to this statement: “*the most common allergy in infancy. Although Gerber referred to the qualified health claim determination in its ads, it didn’t use any of the approved versions. A]dvertisements that reframe critiques of a product as praise can constitute false advertising.”

False Advertising 104

False Advertising Advertising Advertising Reporting 104

43(B)log

JANUARY 11, 2023

9, 2023) Simpson sued MiTek for Lanham Act and state law false advertising/passing off, and for copyright infringement. MiTek allegedly uses product names that are identical or similar to Simpson product names and also uses Simpson’s product names as “reference numbers” for MiTek’s own products. Simpson Strong-Tie Co.

False Advertising 59

False Advertising Advertising Advertising Reporting 59

Technology & Marketing Law Blog

APRIL 27, 2024

This is a false advertising lawsuit again the mobile app game Game of Thrones: Conquest. Also, the district court took issue with the 2020 call-to-action referring to the TOS as “Terms of Use” when it was actually the “Terms of Service.” sought to send the case to arbitration. Warner Bros.

False Advertising 83

False Advertising Government Privacy Designs 83

43(B)log

SEPTEMBER 26, 2022

21, 2022) Geomatrix sued defendants for Sherman Act violations and false advertising in the market for onsite wastewater treatment systems, aka septic systems. Two competitors are defendants, as well as NSF, a nonprofit accredited by ANSI that “certifies many of the onsite wastewater products brought into commerce.”

False Advertising 64

False Advertising Advertising Advertising Marketing 64

43(B)log

DECEMBER 8, 2022

At trial, Republic alleged that HBI engaged in false advertising under the Lanham Act, unfair competition, and violations of the IUDTPA. It also rejected the Lanham Act false advertising claim, but found unfair competition and IUDTPA violations by HBI. Alcoy, the birthplace of rolling paper.”

False Advertising 59

False Advertising Advertising Advertising Editing 59