Deadly automatic litterbox might be falsely advertised as “safe”

Posted on February 25, 2026 by rtushnet

Gomez v. PetPivot, Inc., 2026 WL 507708, No. 25-cv-5622
(LJL) (S.D.N.Y. Feb. 24, 2026)

“Safe” is the kind of word that is general enough that it
might be puffery, but courts think that safety is important enough that they
sometimes consider it falsifiable. Here, defendant’s self-cleaning litterbox
product gruesomely killed plaintiffs’ cat after they received the litterbox as
a Christmas gift. (I will not give you the details but they were awful, and it
was difficult to remove the cat’s body.) It was “advertised as remaining
partially open at all times, with no complete enclosure that could entrap a
pet.” On the PetPivot website, Amazon.com, and promotional materials, PetPivot
marketed the Autoscooper as “smart,” “safe,” and “fully automated” and equipped
with multiple “safety protection devices,” including that the system would
automatically stop operating when a cat was inside the chamber. “The Amazon
listing for the PetPivot assured consumers that the device can operate safely
without supervision.”

Although individual defendants from PetPivot were dismissed
for lack of personal jurisdiction, the court allowed NY GBL false advertising
claims to proceed. GBL Sections 349 and 350 require proof of causation but not
“proof of justifiable reliance.” “Reliance is the causal link between an
alleged deceptive practice and a consumer’s decision to transact business with
the defendant, whereas causation refers to the link between an alleged
deceptive practice and an actual injury sustained by a consumer as a result of
such practice.” Thus, causation can be shown by evidence either that the plaintiff
would not have entered into the transaction or would have taken precautionary
measures with the product had they known the truth.

Here, plaintiffs didn’t claim they bought the product in
reliance on defendants’ representations, but rather that they relied on those representations
when accepting and using the product in the home. That sufficed: they alleged a
“connection between the misrepresentation and … harm from, or failure, of,
the product.” Also, applying Rule 8, they adequately identified the
misrepresentations at issue.

Can the death of a cat qualify for negligent infliction of
emotional distress where neither plaintiff was threatened with physical harm? “Bystander”
claims for NIED in New York are limited to “immediate family,” but the courts
have declined to define the outer boundaries of that phrase.  New York courts have allowed a grandmother to
pursue a claim for bystander recovery following the tragic death of her
grandchild, relying on the “legislative recognition of the changing nature of
society’s understanding of family and the special relationship between
grandparents and grandchildren.” By contrast, the relationship between aunts
and uncles and their nieces and nephews didn’t qualify. “[T]he inquiry is
objective; it asks not whether the grandmother and her grandchild had an
exceptionally close bond, but whether New York law has evolved to recognize
grandparents as a ‘discrete, limited class of persons that enjoys a special
status under modern New York family law.’” 

A lower NY court also found that a
pet dog could be classified as “immediate family.” New York Domestic Relations
Law (“DRL”) requires a “best interest” framework for determining the custody of
pets, similar to the framework for children, in recognition “that ‘for many
families, pets are the equivalent of children and must be granted more
consideration by courts to ensure that they will be properly cared for after a
divorce.’ ” The court also considered societal norms regarding pets in hotel
rooms and on planes, and concluded that “considering the various accommodations
made for companion animals in general, along with the deep and affectionate
bond Plaintiffs shared with their dog, it stands to reason that companion
animals … could also be recognized, as a matter of common sense, as immediate
family.” However, it limited the rule to situations in which “the pet was
leashed to the plaintiff at the time the negligent act occurred and the
plaintiff herself was exposed to danger.” Thus, this case did not support extending
NIED to the death of a cat outside the presence of, and danger to, her person. Her
exposure to danger “did not go beyond witnessing the mechanical movement of the
machine and unplugging it from the wall.”

For the remaining claims, “New York courts treat pets as
personal property and consequently do not permit damages for emotional distress
or loss of companionship.” But punitive damages might be available for strict
products liability and GBL violations under appropriate circumstances.  

from Blogger http://tushnet.blogspot.com/2026/02/deadly-automatic-litterbox-might-be.html

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Amicus in support of cert in Lanham Act intent/damages case

Posted on February 24, 2026 by rtushnet

 Truth in Advertising, Barton Beebe, Mark Lemley, Alexandra Roberts and I just filed a brief arguing that the Supreme Court should clarify the role of intent in Lanham Act cases.

from Blogger http://tushnet.blogspot.com/2026/02/amicus-in-support-of-cert-in-lanham-act.html

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Does “Dead Weeds in 1 Day” mean the entire weed will die, or just the visible part?

Posted on February 23, 2026 by rtushnet

Scotts Co. v. Procter & Gamble Co., 2026 WL 482655, No.
2:24-cv-4199 (S.D. Ohio Feb. 20, 2026)

Previously, the court rejected Scotts’ request for a
preliminary injunction of the trade dress of P&G’s Spruce brand of weed
killer products, finding that it was not likely to be confused with Scotts’
Miracle-Gro. Scotts also makes Roundup and Ortho, relevant to the false
advertising claims addressed here. The court dismissed one part of the claim
but allowed the rest to survive.

Scotts challenged four different P&G statements (combined
with certain visuals).

Dead weeds in 1 day

First, “Dead Weeds in 1 Day” and its accompanying visuals.  Scotts alleged that this was “literally false”
because Spruce weed killer will not kill the entire weed within one day. Spruce
is a “minimum risk product” as defined by the Environmental Protection Agency,
and “[t]o date, all minimum risk products work by making contact only with the
exposed portions of the plant and none directly affects the roots of the
plant.” Thus, while “[w]ith regular application at certain dosages over time, a
minimum risk product may eventually exhaust the roots’ storage of nutrients by
repeatedly removing its leaves,” it will not kill the entire weed within one
day.

Statement 2 uses the same visuals and has the same alleged
problem: “Spruce works differently by dehydrating the weed down to the roots
for dead weeds in just 1 day.”

visible results in 1 hour

Statement 3 promises “FAST Visible Results Within 1 Hour” or
“visible results in 1 hour,” accompanied by before and after visual depictions.
Scotts alleged that these “after-application images do not accurately portray
typical results” of Spruce weed killer’s effects after only one hour.

Spruce works differently image

Statement 4 is titled “Spruce Works DIFFERENTLY.” It also
says “WEEDS DEHYDRATE TO DEATH,” “1 HR,” and that “Without water, weeds
dehydrate and die fast, showing visible results in 1 hour,” and was allegedly misleading
for the same reasons.

P&G argued that Rule 9(b) should apply because false
advertising “sounds in fraud.” Although this argument routinely works in
consumer protection cases (because courts don’t like them), it fails here, as
it sometimes does in Lanham Act false advertising cases. (Never in regular
trademark cases, as far as I can recall.)

As P&G conceded, “[n]o Circuit has yet ruled on whether
Rule 9(b)’s pleading standard generally applies to Lanham Act false advertising
claims.” P&G’s theory of the law is that “if an element of any claim
‘requires an allegation of duplicity,’ it ‘implicates Rule 9(b)’s purpose’ and,
therefore, Rule 9(b)’s heightened pleading standard applies.” And, because
Scotts alleged intentional deception, the claim sounded in fraud.

But, as the court noted, “Lanham Act false advertising
claims do not have a scienter element, so it is hard to see how they would
require an allegation of duplicity.” The Sixth Circuit has applied the Rule
9(b) pleading requirements to some causes of action missing an intent
requirement on par with the intent required for fraud—for example, to innocent
misrepresentation. “But typically, courts do so when a ‘unified course of
fraudulent content’ forms the basis of those non-fraud claims—especially if
pleaded alongside fraud.” This is designed to prevent evasion of Rule 9(b).

Here, though, Scotts’ false advertising claim was based on
the allegedly false and misleading nature of the statements themselves, not on
the allegation that P&G is “willfully … intending to deceive consumers.” “That
is, if the statements are false, liability could attach even absent intent. So
there is no indication that Scotts’ actual claim is fraud, with the false
advertising claim only pled to circumvent Rule 9(b)’s strictures.”

More generally, “Lanham Act false advertising claims, while
also based on ‘false’ statements, seem different in kind than traditional fraud
claims.” Rule 9(b) is designed to ensure defendants have sufficient notice to
respond. “But allegedly false or misleading advertisements typically run over
an extended period of time, making it ‘unreasonable and contrary to the Sixth
Circuit’s liberal construction of Rule 9(b) to require Plaintiff[s] to identify
the exact day, hour or place of every advertisement’ that caused them harm.” Scotts
clearly identified the statements it challenged, providing P&G all of the
notice needed for it to respond. (It would also be possible to decide that this
satisfied 9(b), as some cases have done.)

In addition, Lanham Act claims differ because Scotts was not
alleging that it itself was defrauded, but that its customers are. “[G]iven
that Scotts itself was not the defrauded entity, some of the who, what, when,
where, and why questions that form the typical grist for Rule 9(b) may turn on
information that Scotts itself does not have—information that instead rests
only with the allegedly defrauded customers.”

Turning to the merits, Scotts plausibly alleged that
statements 2-4 were false or misleading, but not the literal falsity of
statement 1.

Recall that, on Scotts’ theory, Spruce weed killer does not
directly affect the weed’s roots, so it does not (indeed cannot) kill the
entire weed within one day (as the roots are still alive). P&G pointed out
that the visuals do not depict the subterranean portion of the plant, and
argued that “a ‘dead weed’ refers to a plant evidencing visible necrosis as
featured in the accompanying image.” A statement “cannot be literally false if
it reasonably conveys multiple meanings,” and that was the case here. “While
consumers might plausibly take ‘dead weed’ to mean that the entire plant is
dead, and will not grow back, consumers could also plausibly consider a weed
evidencing visible necrosis (i.e., the visible green part is now brown and
dead) to be a ‘dead weed.’”

Scotts did plausibly plead that Statement 1 was misleading. Statement
2 could also cross the line to literal falsity by claiming to dehydrate the
weed “down to the roots for dead weeds in just 1 day.”

This is not ambiguous. The obvious
meaning of this statement is that Spruce works—apparently in contrast to other
weed killers—by dehydrating the whole plant, including the roots. It is not
plausible that reasonable consumers would take the phrase “down to the roots”
to mean just the above-ground portion of the weed. “Down to the [whatever
thing]” conveys finality and the exhaustion of that thing. If coffee is good
“down to the last drop,” one expects that the last drop will be good, as well.
And if an event is planned “down to the last detail,” that means that the last
detail is accounted for, too. True, sometimes phrases using this structure can
mean something like “everything is gone except the thing.” For example, if a
house is burned “down to the ground,” that does not suggest that the ground
itself has burned. But even then, “down to [something]” means that the entirety
of the thing is exhausted. The house burning “down to the ground” means that
everything that can burn has; no part remains. Either way, weeds dehydrated
“down to the roots” conveys that the roots, too, are dehydrated. Accordingly,
there are not multiple reasonable interpretations of Statement 2 and Scotts has
sufficiently alleged that it is literally false and misleading.

Statements 3 & 4 were also both plausibly false and
misleading. “Scotts is alleging that weeds treated with Spruce weed killer will
not have the visible results in one hour that the images depict. Or in other
words, if you spray weeds with Spruce and wait one hour, the weeds do not in
fact look like the pictures. Whether these images are actually inaccurate, and
if the images and statements together are actually misleading consumers, are
issues the Court will address later.”

from Blogger http://tushnet.blogspot.com/2026/02/does-dead-weeds-in-1-day-mean-entire.html

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(c) licensor’s claims about competitor’s allegedly worse licenses were opinion, not falsifiable fact

Posted on February 23, 2026 by rtushnet

Tresóna Multimedia, LLC v. Pre-Cleared Ltd. D/B/A ClicknClear,
2026 WL 480858, No. 25-cv-6202 (GBD) (S.D.N.Y. Feb. 19, 2026)

Tresóna, a music copyright licensing entity, sued competitor
ClicknClear for NY state and federal false advertising. The court dismissed the
claim.

Since 2009, Tresóna has allegedly been issuing music
licenses, on behalf of music rightsholders, to a “niche market” of “scholastic,
community, and professional organizations.” Its main clients “include vocal
ensembles, marching bands, color guards, show choirs, and other similar
performing arts groups.” Its licenses cover certain musical works and sound
recordings, including for “print, synchronization, dramatic performance, and
remixing.”

ClicknClear entered the U.S. market in or about 2016 and
later attempted to move into the “niche market” that Tresóna operates in –
issuing licenses for musical works and sound recordings to scholastic,
community, and professional organizations. It offers “licenses to various
performance sports in which teams perform alongside recorded music, including
artistic swimming, cheerleading, color guard, dance, dressage, figure skating,
fitness, gymnastics, indoor skydiving, jump rope, and band/vocal ensembles.”

ClicknClear’s website informs consumers that “[t]here is
often misleading information about what rights are required for ensembles to
make an arrangement of music to accompany your routine.” ClicknClear states
that “the rights that are needed to use a song in your performance” include the
right to 1) “[p]ractise alone;” 2) “[s]et choreography to the song(s);” 3)
“make copies of the arrangement for personal (practise) use; and 4) “[p]erform
the routine in public with music: practise and competition.” ClicknClear states
that “ClicknClear offer[s] all of these rights with our standard license.”

ClicknClear further purports to offer “legal services,” on
its website, including “legal advice for owners and users of intellectual
property rights, copyright and related rights.” And it offers a “License
Verification System” (“LVS”) feature on their website that purports to evaluate
and verify third party licenses, including Tresóna’s licenses. Users select the
events at which the user is performing or competing, upload a sound recording
of the sound, and upload proof of licensing documentation. The LVS returns one
of three possible outcomes for the user; “green” for licensed, “yellow” for
unverified, and “red” for unlicensed. The LVS only returns an automatic “green”
result if the license is from ClicknClear, while any license issued by third
parties will return a “yellow” result. ClicknClear has stated that when
consumers receive an “unlicensed” or “unverified” result via the LVS, it causes
them to “panic.”

In a prominent Facebook group for marching band arrangers, an
individual defendant suggested (and then retracted after Tresóna’s C&D)
that ClicknClear is able to offer better licenses at a lower price than Tresóna
because Tresóna does not use a “pre-cleared model.” In a presentation given to
potential consumers, ClicknClear suggested that its licenses are “stronger”
than those offered by Tresóna as they cover “all” of the rights necessary,
while suggesting that “Tresóna does not offer a full license but rather only a
certificate.”

First, the challenge to ClicknClear’s statements about what
rights are necessary: Tresóna argues that the statements were both literally
and impliedly false because these are “illusory” rights that consumers do not
need in all situations. The court found that these were non-actionable opinions
about the law. “As both sides agree, the necessity of these rights involve
unclear and contested areas of copyright law. Indeed, ClicknClear and Tresóna
devote most of their briefing to arguing whether or not each subset of the
necessary rights (to set a choreographed routine, to publicly perform, and to
practice alone) are actually needed by consumers.” Given this dispute,
ClicknClear is “expressing an opinion on an inconclusive question of law” and
“not making representations of verifiable or ‘hard definable facts.’ ”

Even if these weren’t opinions, they were ambiguous:
ClicknClear mentions on its website, quite ambiguously, which rights are
“required for ensembles to make an arrangement of music to accompany your
routine.” “In order for these statements to be literally false, Tresóna would
have to plausibly allege that there is no instance in which these rights are
required.” But whether or not these rights are needed in a given case depends
on the outcome of a “fact-specific and [ ] individualized inquiry” in this
“unsettled area of copyright law.”

That didn’t prevent misleadingness, but for that, Tresóna needed
to “allege that consumers or retailers were misled or confused by the
challenged advertisement and offer facts to support that claim” or allege deliberate,
egregious deception. It didn’t. It alleged that “[c]ustomers have told Tresóna
that they are facing pressure from their federations and governing bodies to
use ClicknClear instead of Tresóna,” and “the pressure is driven at least in
part because of ClicknClear’s false and misleading statements as well as the
LVS.” But it was not enough to “identify[ ] a broad swath of people [that were]
allegedly deceived.” (Now do trademark complaints.) “Tresóna fails to identify
any ‘federations’ or ‘governing bodies’ that pressured consumers, nor does
Tresona allege how this pressure has caused customers to buy ClicknClear’s
licenses as opposed to Tresóna’s. And even if Tresóna did allege that customers
were buying ClicknClear licenses as opposed to Tresóna’s, Tresóna does not
allege how these decisions were because of ClicknClear’s necessary rights
statements as opposed to other reasons for purchasing ClicknClear’s licenses.”
[I dunno, ‘take this license and not that one to protect yourself against expensive
lawsuits’ seems pretty clear in its pressure effect.]

Merely stating that there have been “LAWSUITS for copyright
infringement” was literally true and thus not actionable. It also didn’t relate
to an “inherent quality or characteristic of the product [at issue].”

License verification system: Was it misleading that all
other licenses issued by third parties, including Tresóna’s, will return a
“yellow” result, meaning the license’s legality is “unverified,” or red for
“unlicensed”? No: “The LVS, ultimately, is an inherently subjective rating
system that evaluates the quality of third-party licenses. Indeed, the outcome
of the LVS is dependent on which factors ClicknClear believes to be important
in evaluating a license. ‘A reasonable consumer would view [LVS’s] rating as
just that – the defendant’s evaluation.’”

And even assuming the statements were impliedly false or
misleading, Tresóna similarly failed to allege sufficient indications of
consumer confusion. “The unauthorized practice of law is not a basis for a
Lanham Act claim.”

Anti-Tresóna statements: ClicknClear’s statements about
Tresóna’s “very bad reputation,” its representations that ClicknClear licenses
are “better” or “stronger” than Tresóna’s, and its assertions that ClicknClear
was in a “strong position” to harm Tresóna were nonactionable puffery.

By contrast, ClicknClear’s statements in 2021, 2024, and
2025, that Tresóna does not use a “pre-cleared model,” or that Tresóna does not
offer a full legally compliant license but instead offers a “certificate,” were
statements of facts that could be proven true or false. Still, Tresóna didn’t
offer facts as to how these statements actually misled the public or affected
their purchases, or that the statements were commercial speech: “part of an
organized campaign to penetrate the relevant market.” “The statements alleged
here, one in a Facebook post that has now been deleted, and two upon
information and belief, do not suggest ‘widespread dissemination within the
relevant industry,’ and more aptly resemble ‘isolated disparaging statements’
that ‘do not have redress under the Lanham Act.’”

The court didn’t have to reach the state claims, but it commented
that Tresóna also failed to allege how ClicknClear’s statement constituted harm
to the public interest, as opposed to another business.

from Blogger http://tushnet.blogspot.com/2026/02/c-licensors-claims-about-competitors.html

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Fairlife brand name plausibly misleading where cows allegedly lived abuse-filled lives of suffering

Posted on February 18, 2026 by rtushnet

Bhotiwihok v. Fairlife, LLC, № 2:25-cv-01650-ODW (AGRx), 2026
WL 413749 (C.D. Cal. Feb. 13, 2026)

“In 2014, Select Milk, a dairy cooperative, partnered with
Coca-Cola to launch Fairlife, a company with an eponymous line of premium milk
and milk products…. Fairlife promotes, and charges more for, high levels of
environmental sustainability and animal care.”

Fairlife bottles include the phrase “Recycle Me” on their
labels and are stamped with a recyclability arrow, and it claims that its farms
are “top in the industry for environmental sustainability.” Plaintiffs alleged
that 0% of Fairlife bottles are recyclable and that the sustainability
practices at Fairlife’s farms cause disproportionate environmental damage.

Fairlife also allegedly claims to follow industry-leading
animal care standards and to have zero tolerance for abusive practices at farms
supplying its milk, as represented by its logo:

But successive independent investigations have allegedly uncovered
“horrendous animal abuse” at farms supplying Fairlife’s milk, which I will not
recite but are indeed horrendous.

Plaintiffs alleged the usual
California claims.   

Although the court found that plaintiffs hadn’t plausibly
alleged enough Coca-Cola involvement to keep the parent company in, claims
against Fairlife survived. The only allegations with sufficient particularity
involved the Fairlife Logo and the recyclability claims on Fairlife’s bottle
label. Nor did plaintiffs successfully plead fraudulent omission. Courts have
required plaintiffs to “describe the content of the omission and where the
omitted information should or could have been revealed, as well as provide
representative samples of advertisements, offers, or other representations that
plaintiff relied on to make her purchase and that failed to include the
allegedly omitted information.” Although plaintiffs pled that Fairlife
“intentionally fail[ed] to disclose material information about the products,”
including that Fairlife’s products are derived from abused cows and that the
products’ packaging is not recyclable, they didn’t identify where this
information should or could have been revealed or which specific
“advertisements, offers, or other representations” omitted critical information.
Leave to amend granted if there was more.

Fairlife logo

Claims based on the logo survived as a plausible misrepresentation
of Fairlife’s animal care practices. “[B]rand names can be an especially
powerful source of misleading information,” even if the brand name itself is
not a recognized word. Combining the words “fair” and “life” together in a
brand name “may reasonably lead to the assumption that the subject of the brand
lives a ‘fair life.’” Superimposed on a cartoon picture of a cow, “the
implication becomes unmistakable: the cows are living a fair life. Thus, it is
well within reason for a consumer to believe that, based on the Fairlife logo,
the cows supplying Fairlife’s dairy products are living lives free from abuse.”

Fairlife argues that its logo was nonactionable puffery. But
the Fairlife brand name, “at bottom, suggests that the cows are living lives
free from abuse.” That was specific enough for a reasonable consumer to rely
on, especially in context of the cow image. “Taking as true at this pleading
stage the substantial evidence that shows Fairlife sources its dairy from cows
that live dreadful and appalling lives, it is plausible that Fairlife’s
labeling is misleading.” This may be an example of the line of cases that
refuses to find puffery when no reasonable person could agree that an otherwise
capacious term applied.

Recyclability claims on the bottle: Fairlife argued that California
provided a safe harbor provision through October 4, 2026. The FAL’s specific regulation
of recyclability claims specifically does not apply to “[a]ny product or
packaging that is manufactured up to 18 months after the date the department
publishes the first material characterization study required” by the law (or
before January 1, 2024 if that was later). “Read plainly, it appears that the
California Legislature intended to give companies eighteen months after
publication of a generally applicable material characterization study to comply
with recycling guidelines.” This occurred on April 4, 2024. This safe harbor provision
foreclosed the recyclability claims until later in the year. When “specific
legislation provides a ‘safe harbor,’ plaintiffs may not use the general unfair
competition law to assault that harbor.” Nor may they use express warranty
claims.

from Blogger http://tushnet.blogspot.com/2026/02/fairlife-brand-name-plausibly.html

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disgorgement can’t be a lottery windfall–even when D was engaged in illegal gambling

Posted on February 16, 2026 by rtushnet

TNT Amusements, Inc. v. Torch Electronics, LLC, 2026 WL
411747, No. 4:23-CV-330-JAR (E.D. Mo. Feb. 13, 2025)

Previously.
TNT leases traditional arcade games in retail locations throughout Missouri.
Torch Electronics leases “no-chance” gaming devices in the same market. A jury
accepted TNT’s argument that Torch’s devices are illegal slot machines that
divert TNT’s customers in violation of state law. Statements that the devices
eliminated chance were false, and therefore the statement “this amusement
device does not fit any definition of a ‘gambling device’ in the state of
Missouri and is not prohibited for use by you” was also false. The jury awarded
$500,000 in damages, which the court found was $125,000 for lost profits and
the rest for injuries to TNT’s reputation and goodwill. (In a separate opinion,
2026 WL 413322, the court enters declaratory judgment that these are illegal
gambling devices in Missouri, given the trial evidence, including from both
parties’ experts, that the games contain “multiple elements of chance.”)

The court also found the case exceptional for purposes of
attorneys’ fees. “[T]he Missouri Gaming Commission declared Torch Devices
illegal in 2019. However, because the Commission’s jurisdiction is limited to
licensed operators, Torch simply ignored the Commission’s opinion and continued
to operate outside the Commission’s regulatory reach.” The Missouri Highway
Patrol and multiple local law enforcement agencies also warned Torch that its
devices were illegal, and several prosecutors pursued charges against its
customers, and one store was convicted. “Missouri jurisprudence since 1913 has
held that a gaming machine with a prize viewer is still a gambling device.
Appellate courts in sister states have reached the same conclusion in recent
years, as cited in the Commission’s 2019 opinion.”

Thus, “Torch was on notice since at least 2019 that its
commercial representations defied the realities of the legal landscape and were
therefore willfully and deliberately false when viewed in context. Torch simply
chose to ignore existing authority in pursuit of profit. For the same reasons,
the substantive strength of TNT’s position, both in fact and law, was
exceptionally compelling, as reflected by the jury’s swift and significant
verdict in TNT’s favor.” There were also some litigation shenanigans.

The court also planned to award partial disgorgement;
out-of-circuit precedent suggests as factors “whether the defendant had the
intent to confuse or deceive, whether sales have been diverted, the adequacy of
other remedies, any unreasonable delay by the plaintiff in asserting its
rights, the public interest in making the misconduct unprofitable, and whether
the case involves palming off.” And, as the Supreme Court said, “A ‘defendant’s
mental state is a highly important consideration in determining whether an
award of profits is appropriate.’ ” Ultimately, “the district court is given
broad discretion to award the monetary relief necessary to serve the interests
of justice, provided it does not award such relief as a penalty.”

From 2017 to 2023, Torch collected over $5.5 million from
100 machines in locations where it overlapped with TNT, though Torch operates
more than 6,000 devices statewide and might have profited by $68 million in the
past year alone. The court declined to order statewide disgorgement (which
suggests that Torch will still continue to break the law unless stopped by
regulators) but did ask for briefing on appropriate disgorgement.

Torch relied on Retractable Techs., Inc. v. Becton Dickinson
& Co., 919 F.3d 869 (5th Cir. 2019), “where the Fifth Circuit opined that
disgorgement, separate from recovery of diverted profits, would have
constituted a windfall to the plaintiff.” The court found this non-binding case
“largely inapposite,” but noted that it still affirmed the broad discretion of
a district court to consider the equities.

Torch also argued that it had a good faith belief in the veracity
of its statements, based on a 2017 opinion letter from a Chicago law firm and
the fact that some county prosecutors opted not to pursue charges involving
Torch devices. “But the opinion letter was supplied by an Illinois lawyer prior
to the Missouri Gaming Commission’s unequivocal warning in 2019, and the county
prosecutors who abstained from pursuing charges did so in direct reliance on
Torch’s false statements at issue here…. Overall, the evidence belies any
objectively reasonable claim of good faith.”

In addition, Truck Equip. Serv. Co. v. Fruehauf Corp., 536
F.2d 1210 (8th Cir. 1976), although based on an earlier version of the statute,
supported the view that “where the evidence shows willfulness and bad faith,
disgorgement may exceed a plaintiff’s demonstrated losses in order to serve as
a deterrent.” The court was also sympathetic to TNT’s argument that “the Lanham
Act offers multiple forms of recovery precisely due to the inadequacy of
diverted sales and the difficulty of proving the full extent to which a
defendant’s misconduct has harmed the plaintiff or impacted the market.” The
court wasn’t convinced that the amount awarded by the jury fully compensated
TNT for the totality of its market injury, given that TNT was a
long-established business that suffered a loss of 35% after Torch entered; some
of TNT’s accounts lost to Torch had been TNT customers for 20 to 30 years. Though
the parties compete for floor space, TNT’s owner explained that “it’s not a
fair fight” and “We can’t generate the revenue that slot machines generate.”

The court also found that deterrence was an important
consideration and that disgorgement would serve the interests of justice and further
the public interest of making Torch’s conduct unprofitable. “If Torch hadn’t
falsely represented and marketed its devices as ‘no-chance’ games exempt from
Missouri’s definition of a gambling device, Torch couldn’t have operated
anywhere in its current territory. Rather, it could only have operated in
licensed casinos subject to state gaming taxes benefiting public education. One
hundred percent of its revenue is attributable to its misrepresentations.”

However, given the scope of Torch’s operations, “a
disgorgement award sufficient to render Torch’s advertising unprofitable would
inevitably result in a ‘lottery-level windfall’ to TNT.” Thus, disgorgement
limited to overlapping locations was appropriate to deter Torch’s willful
conduct “and render it at least slightly less profitable, to fully compensate
TNT for its market loss, and to serve the greater interests of justice given
the unique circumstances of this case.” Consumers spent over $32 million on Torch
devices in overlapping locations alone during the relevant period. “Torch has
profited tremendously from its misrepresentations and had avoided regulation,
taxation, and prosecution by virtue of its government relations efforts and the
Gaming Commission’s limited jurisdiction. In this regulatory void, TNT’s
lawsuit not only vindicates its own competitive interests but also protects
consumers from the fallacy of ‘no-chance’ gaming going forward.” Further
briefing, and possibly discovery, was required to set the size of the award.

from Blogger http://tushnet.blogspot.com/2026/02/disgorgement-cant-be-lottery-windfall.html

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CFP: emerging First Amendment scholars

Posted on February 10, 2026 by rtushnet

Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O’Connor College of Law (ASU)
and the Hoover Institution (Stanford University)

Are
you a law student, judicial law clerk, lawyer, or beginning academic
hoping to publish a journal article on free speech law? Would you like
the opportunity to get advice about your draft from leading free speech
scholars?

If so, send us your draft by Sunday, August 16, 2026.
(This should still be a draft article, not an article that’s already
published or expected to be published within six months.) We plan to
select the submissions that we think are particularly promising, and invite their authors to a workshop where
they can present their papers and get helpful feedback on them. The
workshop will be Saturday, October 24, 2026 (with dinner the night
before) at the Sandra Day O’Connor College of Law in Phoenix, and we
will inform the selected authors by Tuesday, September 8, 2026.

We have funds to pay for transportation and lodging for the selected authors’ trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles. 

We also plan to officially recognize
zero to three of the top articles among those we review. If the authors
wish, they can also have their articles reviewed for publication in the
Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you’re interested, please submit your draft at http://tinyurl.com/aspiring-free-speech (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation
in the document or document filename, and please do not include an
author’s note thanking your advisors and others. Please make your
filename be the title of your article (or some recognizable subset of
the article title). We want to review the article drafts without knowing
the authors’ identities.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn’t answered there, please e-mail volokh@stanford.edu.

Many thanks to the Stanton Foundation for its generous support.

* * *

James
Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of
Law, Sandra Day O’Connor College of Law, Arizona State University

Eugene
Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford
University), and Gary T. Schwartz Distinguished Professor of Law
Emeritus, UCLA School of Law

from Blogger http://tushnet.blogspot.com/2026/02/cfp-emerging-first-amendment-scholars.html

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“ambiguity” is taking hold in consumer protection class actions, but it’s not the Lanham Act concept

Posted on February 6, 2026 by rtushnet

Ramirez v. S. Martinelli & Co., 2026 WL 272621, No.
25-cv-07569-NC (N.D. Cal. Feb. 2, 2026)

Martinelli’s apple juice products’ front labels state either
“Premium 100% Juice Not From Concentrate” or “100% Juice From U.S. Grown Fresh
Apples.” The products now contain ascorbic acid, a preservative, listed in the
ingredients on the products’ back labels. Martinelli allegedly intentionally
designed the products’ labeling so they appear to contain only juice because
consumers are willing to pay more for a product without additives, and charges
roughly fifty percent more than comparators. FDA and state law allegedly
requires “with added preservatives” on the front label.

Plaintiffs brought NY and California
statutory claims, which the court declined to dismiss.

The court found deception plausible: “Premium 100% Juice Not
From Concentrate” and “100% Juice from U.S. Grown Fresh Apples” were “likely to
deceive a reasonable consumer into believing that the products contain only
apple juice, without other ingredients. That is, reasonable consumers could see
the front label as making an unambiguous representation which would not require
further information.”

Under consumer protection precedents, “[j]ust because the
labels are subject to two reasonable interpretations—that the product is 100%
juice, or that the juice is 100% from fresh apples/not from concentrate—does
not make it ambiguous” such that a reasonable consumer is required to consult
the back label.  Instead, the labels
could be “unambiguously deceptive to an ordinary consumer, such that the
consumer would feel no need to look at the back label.” 

[I think it’s bad to have two different definitions of
“unambiguous,” one for competitors and one for consumers, applied to the same
“false advertising” concept, especially since none of the courts I’ve seen have
acknowledged this difference or given a theoretical justification therefor.
These conflicting definitions are inevitably going to cause legal confusion.
“Plausibly sufficient to convey a specific false message, without the consumer
needing to check for more information” might be better than “unambiguous” for
the consumer protection class action context; it much better captures the
concept although it is of course longer.]

Nor did the claims rest solely on a violation of federal law:
the front labels were plausibly misleading and the plaintiffs alleged reliance
and resulting injury.

The court did kick out a punitive damages request, but not
warranty/unjust enrichment claims or a request for injunctive relief.

from Blogger http://tushnet.blogspot.com/2026/02/ambiguity-is-taking-hold-in-consumer.html

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conducting dueling internet searches converts attys into fact witnesses in TM case

Posted on February 6, 2026 by rtushnet

Vicious Brands, Inc. v. Face Co., No. 24-cv-04996-LJC, 2026
WL 276178 (N.D. Cal. Feb. 3, 2026) (magistrate)

Plaintiff, aka Saints & Sinners, sued Face, aka Skin
Saint, alleging trademark infringement and false advertising. The court granted
the motion to dismiss the false advertising claims but denied summary judgment
on trademark infringement, except for reverse confusion, reflecting the higher
barriers to false advertising claims.

Plaintiff has sold Saints & Sinners haircare products
since 2016, using a mark that includes two horizontally conjoined instances of
the letter S:

It has registrations including that mark.

Defendants sell beauty consultation services and skincare
products under the Skin Saint trade name, using a mark that consists of two
vertically conjoined instances of the letter S:

They began using it in 2021; Saints & Sinners first
learned of it in 2023. “Defendants sell their products through a physical
location in Michigan and, to a lesser extent, nationally through their website”
and through shop.app. They promote themselves on social media and some national
television appearances.

Saints & Sinners alleged that it has been planning to
expand into skincare.

False advertising: Saints & Sinners alleged that
“Defendants have engaged in false advertising by making misleading and
deceptive claims about their products in commercial advertisements and
promotions, including representations that their products are medical grade,
provide anti-aging results equivalent to that of medical cosmetic treatments
like injectable fillers and toxins, and reverse/prevent aging changes in the
skin.”

But Saints & Sinners didn’t have standing because there
was no imminent injury. (Why is there standing to claim trademark infringement,
then? Sigh.)

It alleged that it was “ready to launch its skincare line
upon finalization of product attributes and regulatory review,” and that its
products would “directly compete with the serums, creams, and other topical
formulations marketed and sold under Defendants’ brand … namely: cleanser;
moisturizer; creams; cleansers [sic]; toners; masks; skin treatments; and
serums, all in Class 3.” It also alleged that both parties sell through
e-commerce to the same general consumer demographics seeking moisturizing,
antioxidant, and anti-aging skincare products, targeting the same customer
demographics— “customers seeking luxury and performance skincare products”—and sold
through overlapping channels, including online retail/ecommerce platforms like
Amazon.

The Supreme Court has “repeatedly reiterated that threatened
injury must be certainly impending to constitute injury in fact, and that
allegations of possible future injury are not sufficient.” In Lanham Act cases,
the Ninth Circuit has “generally presumed commercial injury when defendant and
plaintiff are direct competitors and defendant’s misrepresentation has a
tendency to mislead consumers.” A plaintiff can meet that burden “using actual
market experience and probable market behavior,” which in the absence of “lost
sales data” might be done by “creating a chain of inferences showing how
defendant’s false advertising could harm plaintiff’s business.” At issue here
was “harm to reputation or sales, which generally arises from direct
competition.”

For Article III, the court pointed to the classic Lujan
case, where environmental plaintiffs’ “mere profession of an intent, some day,
to return” to sites allegedly harmed by the challenged projects was
insufficient to satisfy Article III’s injury requirement. As there, “the
plaintiff alleges only an injury at some indefinite future time, and the acts
necessary to make the injury happen are at least partly within the plaintiff’s
own control.”

In Tercica, Inc. v. Insmed Inc., No. C 05-5027 SBA, 2006 WL
1626930 (N.D. Cal. June 9, 2006), the court found false advertising standing against
an intended competitor in the pharmaceutical industry where the plaintiff had
obtained “FDA approval … and product distribution [was] likely imminent.” And
courts and commentators have stated that “actively preparing to produce the
article in question” is sufficient as “the last point before the point of no
return” in the context of declaratory judgments. But this wasn’t a declaratory
judgment case where the plaintiff would otherwise risk infringement liability. “So
long as there are necessary steps beyond Plaintiff’s control, or doubt as to if
or when a competing product will actually come to market, Plaintiff has alleged
only ‘possible future injury’ as a result of Defendants’ purportedly false
advertising, rather than the ‘certainly impending’ injury necessary ‘to
constitute injury in fact.’” The allegations here indicated that Saints &
Sinners’ products remain subject to “finalization of product attributes and
regulatory review” before they come to market, “raising questions of whether
their launch could still be derailed.”

This analysis also applied to statutory standing under Lexmark.
The court did, however, reject any suggestion that a competitor in a “market
[with] numerous participants” lacks a sufficient expectation of “
‘automatically’ displace[d]” sales to support standing under the Lanham Act— “a
premise that would seem to preclude most if not all Lanham Act false
advertising claims in typical markets with multiple competitors.” The
allegations of the complaint were sufficient to support a plausible inference
that, if or when Sinners & Saints products come to market, at least some of
them will compete directly with at least some of defendants’ products. Leave to
amend granted.

Trademark/summary judgment: I gotta admit, this one seems
extremely thin to me, but nonetheless the parties must proceed on the forward
confusion theory.

Plaintiff’s double-S mark appears on many (perhaps all) of its
products, typically with the double-S mark positioned above Saints &
Sinners, which is in turn positioned above a product title. The product
packaging tends to be a solid color or gradient, with the mark and text
generally displayed in monochrome white, silver, or black. Saints & Sinners
products are mostly sold at suggested retail prices ranging from $20 to $95, and
in third-party beauty subscription boxes. And, as discussed, Saints &
Sinners planned to expand.

Skin Saint’s founder testified at a deposition that she used
a “logo generator” to develop a new mark in 2020, and settled on the double-S
mark because it was visually appealing and resembled her logo for her related
FACE clinic, which “is a wave with an F.” She did not research whether the mark
was similar to other marks used by other companies. Skin Saint’s products often
display their double-S mark positioned vertically above the words “SKIN SAINT,”
in turn above a product name or description. The packaging is white and the
mark and text are black. Since they began using the accused mark in 2021, defendants
have sold significantly more Skin Saint products through their clinic than
through their website.

Saints & Sinners learned of Skin Saint’s mark from a
trademark watch report that characterized defendants’ mark as having a “Low
risk” of conflict with plaintiff’s mark. Plaintiff nonetheless opposed, which
is ongoing.

Plaintiff’s counsel offered “screenshots of searches [he]
personally conducted on the SHOP.app website” that show some of defendants’
products among search results for the search query “Saints and Sinners
skincare” and other similar queries. But defense counsel was unable to
replicate those results and did not find any of defendants’ products when
running the same searches on Shop.app. (Hmm… a personalized algorithm might be
doing this if, as is plausible, plaintiff’s counsel had sought out defendants’
products before.) Defendants’ sales through Shop.app were 28 orders for a total
of $2,468 in the first ten months of 2025 and less in 2024.

There was no evidence of actual confusion or other harm. “A
Google search for either party’s name does not return the other party’s website
or products in the first ten pages of results.” Several other skincare and
haircare brands use marks with a double S, but none use “saint” or “sinner” in
their trade names.

Saints & Sinners also submitted an expert declaration from
“a beauty industry consultan[t] specializing in market strategy and consumer
behavior across skincare, haircare, and adjacent personal care categories” who opined
that haircare and skincare markets were converging to focus on scalp care (the “skinnification”
of hair), that impulse buying of beauty products in the social media era was
common, and that consumer confusion was likely, although the court didn’t rely
on that last for its summary judgment ruling.  

As for those searches on shop.app: “Whether intentionally or
not, both parties’ attorneys have made themselves fact witnesses, and the Court
now orders that the parties may take their depositions regarding the limited
issue of their Shop.app searches within the time that the parties have reserved
for other specific depositions.” The court wouldn’t disregard either parties’ attorneys’
searches. [Not sure depositions would help if the issue is algorithms! Bringing
in the specific computers, or at least logging in as the specific attorneys, might
do more.]

Basically, the multifactor confusion inquiry means that it’s
hard to grant summary judgment for defendants. Unfortunately, along with deeming
the double-S logo arbitrary and possessed of some commercial strength, the
court also quoted out-of-circuit precedent that incontestable registrations “are presumed to be strong marks.” [I didn’t pull the registrations–but the description that the registrations “include” rather than consist of the double-S would also cut against this conclusion, since what is incontestable is the registration as a whole, not parts of it.]

For reverse confusion, though, “Defendants’ relatively
modest sales—at least on the scale of the national skincare or beauty market as
a whole—undermine any implication that Defendants pose a serious risk of
dominating the public’s perception of the market.”

And, though the parties’ “marks have meaningful differences,
such that someone comparing them side by side would never consider them to be
the same mark,” there was enough similarity to go to a jury, even though it was
perhaps “a close call,” given the parties’ monochromatic color palettes and
overlapping use of “saint.”

And, even if a lack of survey evidence should be presumed to
favor the defendant, “whether a presumption has been overcome is normally a
question for the jury.” [I think this presumption is best applied to large
companies with large litigation budgets: if P&G doesn’t submit a survey, we
can infer that it expected bad results. I don’t think it’s a good idea to
disregard the absence of a survey in all summary judgment contexts, but the
court here does because it focuses on the Ninth Circuit’s caution that summary
judgment is disfavored in trademark infringement cases.]

Likewise, the court discounted the absence of any actual
confusion evidence because the parties weren’t in “direct local competition
over a period of several years.” “It remains possible that consumers have
confused the two marks, and either purchased or declined to purchase products
based on that mistake, without alerting either party to their having done so.”
How is the jury to assess this possibility in assessing likelihood?

from Blogger http://tushnet.blogspot.com/2026/02/conducting-dueling-internet-searches.html

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Santa Clara IP Conference: Where Do We Go From Here?

Posted on January 31, 2026 by rtushnet

Moderator: Edward Lee, Santa Clara Law

BJ Ard (copyright), University of Wisconsin Law School

© is often displaced by contract and other regimes in sectors—scaling
it up or down would produce minimal impact. Consumer copying for example is
often solved by non-© solutions: Spotify changed things, as did rise of
cloud-based services which meant people had less to share. Content ID can block
fair use but does allow lots of uses that otherwise wouldn’t be fair. Even
big-budget productions, like video games, don’t rely on © to deter
second-comers but on features that are costly to duplicate, actors/TM/ROP
protection, sequelization. It’s not that this sector is representative but hybrid
relations that are only partly ©-governed exist across the board. Copyright
owners use licensing models to overwrite © provisions. Streaming services
continue this trend w/no need for legal enforcement b/c access is built into the
system.

© is the only policymaking place where concerns about AI are
actually being aired, but © can’t stop AI; big © owners are going to license.
Given that © isn’t doing as much work in its traditional domains, we shouldn’t
expect it to do work in these new domains. Asking it to solve labor issues,
market concentration, privacy is likely to fail.

Colleen Chien (patent): AI’s effects on search for
examination; AI can also identify potentially infringing products. AI tools
used to digest evidence and make predictions. As we see platforms start to make
their own IP infringement determinations, we might find them “good enough” w/o
need for lawyers. Discussed need for human review—need to figure out.

Camilla Hrdy (trade secret), Rutgers Law School

Trade secret law is different from other IP; often not
defined until mid litigation where you perform “identification,” the law of
which is in chaos. California wants you to identify the secret before discovery;
courts had maybe been converging on that but the 9th Circuit said
no, the Defend Trade Secrets Act has a different standard—not reasonable
particularity but sufficient particularity; other circuits say different
things. Lack of clarity on fundamental initial issue. What does it mean to keep
something secret? Not clear; jury left on its own. What does it mean for a
secret to be readily ascertainable? In California, the most important trade
secret jurisdiction, there isn’t a requirement of lack of ready
ascertainability—even if you could perform reverse engineering in 8 hours you
can still be liable for getting it from an employee. NJ has the same rule. Lots
of lack of clarity about workers’ high level knowledge and experience—lots of
courts think that asking about that is the same as asking whether something is
generally known in the field. Not clear about what it takes for a secret to
have independent economic value—lots of courts just look at whether you
invested in the information. We need more people thinking about trade secret
law! People need to talk to practitioners. We don’t know enough!

Keith Robinson (patent), Wake Forest University School of
Law

Uncertainty around what counts as invention. Mental
conception doesn’t really match with the evidence we look for (documentary:
notebook, emails, other records). Identifying a problem rarely matters. Even a
highly specific articulation of a problem is typically insufficient unless
paired w/ a concrete solution.

Jennifer Rothman (right of publicity), Univ. of Pennsylvania
Carey Law School

Identity thicket: overlapping rights. People have been
registering marks in names/likenesses for a while; current focus on Matthew
McConaghey is perplexing to her (and me). But we might highlight how rights are
being separated out w/potentially different controllers and licensees. There
used to be a lot more distinction b/t people using name as business name/putting
it on goods/services. But now the Lanham Act and states protect use of names,
voices, and images as marks, at least if we are commercializing them in some
way. The PR stunt of the registrations is more interesting: he has a deal for
use of his voice as a voice clone that can speak multiple languages—it’s a way
to market his deal. False advertising law is also relevant to these uses. © is
also relevant and maybe is less peripheral than Ard said. Are digital replicas
uncopyrightable? Unclear! There are pending registrations. If registrable, can
there be multiple registrations of a digital replica as you can have multiple
registrations of photos of a person? If so, what’s infringement? We’ll see
people leveraging © this way more. © one’s personality or “character” bible in
the same way people © scripts. Music industry has already made © claims that
using similar voices is infringing.

At the federal level Take It Down is about intimate images;
No Fakes is also under consideration to regulate digital replicas generally.
There’s so much going on: that’s the identity thicket. And one person might not
control all these rights; rights conflicts are possible, raising serious
concerns about a human-centered approach. Compare to EU approach, focusing on
concerns about the underlying person being depicted and secondarily on the
public.

Capitol Hill: not clear what will happen, if anything. But
it won’t help matters very much b/c unlikely to preempt the thicket that
already exists. And won’t address concerns about transferring rights away from
underlying person, or about deception licensed by the underlying person. Considering
model state ROP law to address more of these issues, especially transferring
someone’s own name, likeness etc away from them—has seen SAG realize this is a
problem. Might see more of an appetite for repealing CDA 230; shifts in tech to
build guardrails; we might see shifts in preferences for authenticity—hopes for
the renaissance of theater.

from Blogger http://tushnet.blogspot.com/2026/01/santa-clara-ip-conference-where-do-we.html

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