Elsevier’s “peer review” claims are commercial advertising, but not shown false or connected to P’s harm

Posted on October 27, 2026 by rtushnet

Global Plasma Solutions, Inc. v. Elsevier LTD, 2026 WL
3168613, No. 3:22-CV-00034-KDB-WCM (W.D.N.C. Oct. 22, 2026)

Wow, a case where Elsevier is entirely in the right. GPS alleged
that its air purifier business was greatly harmed by a defamatory article
published in Building and Environment, a scientific journal owned by Elsevier,
during the 2020 pandemic, and also that Elsevier’s advertisement of BAE’s
articles as “peer reviewed” violated the Lanham Act.

The court first found that GPS was a limited purpose public
figure with respect to the safety and efficacy of its bipolar ionization
technology and couldn’t establish by clear and convincing evidence that
Elsevier published the article with “actual malice.” Nor could a reasonable
jury find that consumers were misled by the truthful statements that the article
was “peer reviewed” or that an Elsevier ad was a proximate cause of GPS’s
claimed diminution in its corporate value, kicking out the Lanham Act claim.

GPS alleged that its NPBI technology generates negative and
positive ions which reduce airborne viruses and bacteria, remove particles from
the air via agglomeration, and help to remove odors via particle removal.

“Obviously, the issue of clean air is one of major public
importance.” “There has long been public interest and scientific debate over
the safety and effectiveness of the various technologies that claim to improve
the quality of the air indoors, including ionization technology.”

In 2018, researchers at the New York State Department of
Health published an article in the ASHRAE Journal that explained air cleaners
labeled as “bipolar ionizing” can generate reactive oxygen species (“ROS”) that
react with volatile organic compounds (“VOCs”) to create harmful byproducts
such as ozone, formaldehyde, and acetone. GPS emailed the article’s lead author
attaching a GPS-authored paper, attempting to persuade him that “GPS’s
technology is very different than all other technologies.” GPS’s founder and
inventor of its technology also published a public response on behalf of GPS in
the ASHRAE Journal, to which the NYDOH researchers published a reply explaining
that “GPS manufactures ion generation devices, which must form ROS to perform
‘air purification’: ROS react with volatile organic chemicals, forming
ultra-fine particles and aldehydes, as was shown in our study.” (ASHRAE is an
important body in the field.)

GPS then commissioned more than 20 tests to position its
devices as effective against COVID-19 and other pathogens, touting them in
public statements. Scrutiny of GPS’s devices followed, including articles
contesting their safety and efficacy.

BAE’s audience is civil engineers, environmentalists,
planners, architects and designers. BAE published an article titled “Evaluating
a commercially available in duct bipolar ionization device for pollutant
removal and potential byproduct formation,” which studied a GPS device. It noted
the “unprecedented level of interest and investment in indoor air cleaning
technologies,” which are often “not evaluated by any federal agency or industry
standards organizations for their efficacy or their potential for unintended
consequences, including the generation of chemical byproducts.” The Article
then summarized the debate about bipolar ionizer devices, and identified its
topic as the “effectiveness or potential for byproduct formation of bipolar
ionization devices used in realistic settings.” Its two reported experiments found
an increase in some hydrocarbons (e.g., xylenes) but an increase in others,
most prominently oxygenated VOCs; it called for further investigation.

BAE used peer review based on internal guidelines. Given
that invited reviewers will often decline the invitation to review. Therefore,
an editor may make a decision on whether to accept the paper for publication
based on a single review report “if the review is comprehensive and thorough,”
although “the use of [a] single reviewer should be rare” and “two review
reports may not be sufficient” if one of the reviewers does not “deliver a
quality report.” The publication decision is ultimately left to the editor, who
is instructed to “look at review quality and credentials to make your own
judgment.” Elsevier testified that it is the individual “editor’s choice as to
which articles they accept” consistent with “editorial independence,” because
editors, not Elsevier or its employees, are the subject matter “expert[s]” best
positioned to judge scholarly works in their respective fields.

The initial screener here had published papers on air
cleaning, which included measuring gases and particles in test rooms and real
environments; he sent it to three reviewers, none of whom were alleged to have
been unqualified, for comments and ratings on numerical scales. The reviews
were mixed (“Major Revision,” “Reject” (without specific comments; the editor
concluded that Reviewer 2 hadn’t really tried), and “Minor Revision,” with
overall ratings that were generally qualified for publication). After revision,
Reviewer 3 switched to “Accept,” while Reviewer 1 stayed with “Major Revision”
but scored the article more favorably numerically. After another round of
revisions, the editor accepted the article.

Elsevier regularly advertises its journals as “peer reviewed”
and touts a “rigorous editorial and peer review” process.

GPS alleged that the Article’s statements about how its
bipolar ionization technology performed during testing were false and
“devastated” their business because “many of GPS’s customers paused, canceled,
or stopped orders” as a result. They made no claim against the authors, despite
attacking their alleged biases; there was no evidence that Elsevier was aware
of these biases.

Defamation: “To encourage the broad and searching debates
necessary for scientific progress, scientific conclusions and opinions cannot
be the subject of defamation liability, in the absence of fabricated or
dishonestly presented data or methodology.” But the court didn’t have to
resolve the “close” question of whether the article was scientific opinion,
given the absence of evidence of actual malice.

GPS didn’t dispute that the testing was conducted as
described or argue that the data were fake. Instead, it argued that the key
data presented—the different levels of VOCs after bipolar ionization—was an (accurate
but undisclosed) average of two testing results rather than the actual results;
certain Q values (which GPS argued indicated whether the VOCs were properly
identified) were allegedly omitted or were too low to be valid; “cause and
effect” conclusions were impossible with only a single chamber test experiment;
and the study lacked basic scientific competence because its experimental
design, data collection, and analysis were deficient. But how the authors
designed and carried out the study, including use of a single chamber test and
how they identified VOCs, was disclosed in the article. “Readers have enough
information to decide for themselves whether to believe or disbelieve the
study’s results” based on the Q values.

The court (correctly, I think, given how humans understand
language) rejected Elsevier’s argument that the authors “hedged” their
conclusions with qualifying language such as saying that the data “appears” to
show or “suggests” various conclusions and ultimately calling for further
study. Viewing the article as a whole, its conclusions weren’t sufficiently
tentative to grant summary judgment on that ground.

And the court found the use of averages to be the most
substantial criticism. The “core conclusion” was that the levels of certain
VOCs increased after the air was subjected to the bipolar ionization device,
and, for at least some of the VOCs, the two samples were very different, with
one sample reflecting a decrease after ionization and the other representing a
substantial increase. The averages were neither “fabricated” nor “fraudulent.” But
“the lack of a disclosure that an average was taken and the fact that the
underlying data is not made available to the reader is concerning” and “may
have affected the readers’ ability to fully assess the study’s findings.”

Rather than definitively resolving the issue, the court
ruled on actual malice: the claim that the authors hid the issue further
undercut actual malice “because there is no evidence that Elsevier was given
access to or had any reason to know about the supposedly contradictory results
(and of course any argument that Elsevier should have taken some notice from
the Article itself would similarly apply to any reader).”

GPS was a limited-purpose public figure under the governing
test: “whether (1) the plaintiff has access to channels of effective
communication, (2) the plaintiff voluntarily assumed a role of special
prominence in the controversy, (3) the plaintiff sought to influence the
resolution of the controversy, (4) the controversy existed prior to the
publication of the defamatory statements, and (5) the plaintiff retained public
figure status at the time of the alleged defamation.” There was “an ongoing
public controversy about the safety and efficacy of air cleaning technologies,
specifically including bipolar ionization.” Nor was GPS a bystander or
“involuntarily” thrust into the debate. “Instead, it sought to be an opinion
leader supporting the technology, using its considerable resources and
available channels of communication to challenge ASHRAE Journal articles, prepare
a white paper, and commission testing on COVID-19 effectiveness (which it then
touted in press releases).”

There was no evidence that Elsevier had actual knowledge of
any falsity, and its publication process wasn’t reckless. It assigned the
article to a qualified editor who selected three qualified and independent peer
reviewers. Each reviewer (even Reviewer 2) gave the article a passing score and
stated their belief at least once that the article “succeed[ed] by a small
amount” with respect to the statement “the conclusions were supported by the
data.” The editor determined that the authors had sufficiently revised the article
or explained why they had not. “[N]othing in these undisputed facts suggests,
much less establishes with the required level of certainty or high probability,
that Elsevier acted with a reckless disregard of the falsity of the Article.”

GPS argued that Elsevier was reckless because it knew that
the editor was too overworked to do his job properly. Nonetheless, the question
was whether Elsevier acted, with respect to this particular article, “with a
high degree of awareness of its probable falsity.”  

Elsevier may be too focused on its
profitability at the expense of a more careful review of its published articles
and its editors may be overworked, but there is no authority for the
proposition that those allegations standing alone can support a finding of
actual malice in the absence of particularized evidence showing that Elsevier
entertained serious doubts about the veracity of the Article. Otherwise, every
harried editor and commercially driven publisher (which the Court hazards to
guess includes most all of them) would be at risk of a jury verdict of
defamation for every scientific study in which undisclosed errors are later
found. Such a result is the antithesis of “actual malice” and cannot be
accepted without undermining the search for elusive scientific “truth.”

Lanham Act false advertising: Although Elsevier’s frequent
marketing of its journals, including BAE, as “peer reviewed” was “commercial
advertising,” that didn’t matter. There was no literal falsity.

GPS argued that the peer review didn’t meet the journal’s
own internal standards, but that wasn’t the same thing as ads that promise
compliance with a publicly recognized regulatory or statutory standard, such as
“FDA approved.” “GPS cites to no such clear legal standard (or even a specific
widely accepted public definition) with respect to the details of what
constitutes a ‘peer review’; instead, it points to Elsevier’s publication
protocols, which were indisputably private, not included in any advertisement
and, in any event, flexible “guidelines” rather than rigid rules.” The court
noted that, “[i]f liability is imposed on these claims for the failure to
follow internal guidelines in the absence of evidence that otherwise satisfied
the established legal standard, then publishers will in the future simply limit
their peer review process to whatever bare minimum might be acceptable to avoid
liability. This race to the bottom risks significantly degrading rather than
promoting vigorous peer review, to the detriment of scientific research.”

There was likewise no material factual issue on
misleadingness. Its corporate representative’s testimony that customers viewed
peer-reviewed articles as “beyond reproach” and “gospel”; its expert’s
testimony as to the meaning of “peer review” to scientists; and the testimony
of three of Elsevier’s customers that it was important to them that the article
was “peer reviewed” were insufficient in the absence of evidence that any BAE
subscriber—the relevant audience—was misled.

Also, the question here wasn’t whether peer review was
material/increased credibility. “[T]o satisfy its burden, GPS must establish
that a substantial portion of individual subscribers had specific relevant
beliefs as to how a peer review would be conducted (if in fact they had any
view at all) and that the publication process for the Article materially varied
from that understanding so that they were misled.” That evidence was lacking. “[H]ow
many in the relevant audience believed that a peer review can involve approval
by a single reviewer, had a view as to what should happen if there are two
reviewers and they disagree, or would allow an editor to exercise his or her
discretion to ignore a review that includes no justification for a
recommendation not to publish?” A jury could only speculate.

Plus, there was no evidence of any causal connection between
the harm for which GPS sought to recover and the challenged ads. There was no
evidence that any GPS customer saw or heard about an Elsevier ad; they may
simply have assumed the existence of peer review.

from Blogger https://tushnet.blogspot.com/2026/10/elseviers-peer-review-claims-are.html

Posted in Uncategorized | Tagged , | Leave a comment

Quince quashes consumer suit; reasonable consumers must scroll a bit to understand comparison to “traditional retail”

Posted on October 26, 2026 by rtushnet

In re Last Brand, Inc. d/b/a Quince Pricing Litig., 2026 WL
3151517, No. 25-cv-09780-EMC (N.D. Cal. Oct. 21, 2026)

Putative class plaintiffs sued Quince under the consumer
protection laws of nine states (California, Connecticut, Florida, Illinois,
Massachusetts, New Jersey, New York, Oregon, and Washington), and the District
of Columbia. They alleged that Quince’s pricing is deceptive, “either because
strike-through pricing and a “You save X%” message on each product page mislead
consumers into believing the product is on sale, or because information on the
product page comparing the Quince product to similar products sold by other
retailers misleads consumers into believing that Quince’s products are
comparable to or better than the products sold by those other retailers.” Just
as Quince defeated
a competitor false advertising claim, it did the same here.

On each product page on its website, Quince uses
strike-through pricing on what it calls “traditional retail” prices and claims
that consumers “save X%” by purchasing the product through Quince. This “traditional
retail” price is based on what different retailers charge for a similar product.
For example, the “traditional retail” price for the Mongolian Cashmere Crewneck
Sweater is based on what J.Crew charges for a cashmere sweater. The price
Quince charges is not a “sale” price.

Quince cashmere

Each product page has a table titled “Beyond Compare” below the “Add to Cart” button and product details; on mobile it’s below product reviews. The table compares the featured Quince item to a curated selection of products from high-end brands that are being sold at higher prices than the Quince item. Quince allegedly only includes “higher-priced luxury brands such as J.Crew, Everlane, and Naked Cashmere” in the table and excludes products from “mid-tier or value-oriented brands.” It does not provide links to the other retailers’ products or an explanation of how it selects the products it includes. The table allegedly is designed to highlight attributes of a product where Quince performs well, such as “Free Shipping,” while omitting characteristics where Quince may not perform as well, such as resale value.

The table includes an “i” icon that, if hovered over, shows the text: “Competitor information gathered in [MONTH AND YEAR]; pricing is subject to change.” There’s no similar disclosure next to the product’s price or the struck-through reference price.

Quince also uses terms such as “discounted” and “steals” to refer to its products in advertising and on its website. Its website claims that it “keep[s] prices low by using a factory-direct model that cuts out the supply-chain middlemen and reduces costs.”

Plaintiffs alleged that they reasonably understood the crossed-out price to represent a price at which Quince or other retailers had previously sold identical products, but that wasn’t true.

The parties didn’t dispute that the “reasonable consumer” standard was the same across the states, requiring “a probab[ility] that a significant portion of the general consuming public or of targeted consumers … could be misled.”

The court rejected both of plaintiffs’ theories of deception (identical item previously sold at higher price; same/better quality than the competitor’s comparator product).

As for the “sale price” theory, the phrase “traditional retail” wouldn’t lead a reasonable consumer to believe that either Quince or another retailer sold an identical product for the higher price and that the Quince price was a “sale” price. A reference price juxtaposed with a selling price can be plausibly deceptive “where the product was sold exclusively by the retailer and had never been sold at the higher reference price.” That can happen with “Compare At,” “Save X%,” “20% off regular price purchases,” and “sale” labels. But “traditional retail” is different: “No reasonable consumer could think that ‘traditional retail’ refers to the regular non-sale price of the same product.” Even if the term were ambiguous, the “Beyond Compare” table on the same page clarifies things. E.g., the “Beyond Compare” table for Quince’s Mongolian Cashmere Crewneck Sweater shows that Quince’s product is made of “100% Grade-A Mongolian Cashmere,” while the compared products are not. “Traditional retail” “clearly refers to prices charged by other retailers for a comparable product.”

Would a reasonable consumer consult the table when determining whether this was a “sale”?

It appears to be a question of first impression whether information partway down a webpage should be considered part of the “front label” or “back label.” While “clicking on [a] question mark icon … , clicking [a] toggle … , or [navigating to the] Terms of Use or Frequently Asked Questions ” on a website constitutes “more extensive investigation than simply flipping a product over to read the back label,” there is no such barrier here. A Quince consumer would not need to scroll far on the product page to see the “Beyond Compare” table. While the table appears below the “Add to Cart” button, it is on the same webpage as the product and does not require navigating to another page or clicking on any buttons or toggles. And it is fairly proximate to the “Add to Cart” button. Certainly, scrolling partway down the webpage to view the table in this instance is less onerous than flipping over a physical product to read its back label. Thus, the “Beyond Compare” table should be considered as something a reasonable consumer would see.

Even without the table, the top of the product page, with the strike-through price and “traditional retail” text, was sufficiently ambiguous, with “no obvious discernible meaning; if anything, it begs for an explanation, and thus a reasonable consumer would ‘necessarily require more information before reasonably concluding’” what it means.

As for the comparability theory, it was viable only if plaintiffs alleged that Quince’s products were in fact of inferior quality to the products to which they are compared. The FTC guidelines, which the court found useful, refer to comparisons to “other merchandise of like grade and quality,” and plaintiffs didn’t make any allegations that Quince’s products weren’t comparable in quality.  

from Blogger https://tushnet.blogspot.com/2026/10/quince-quashes-consumer-suit-reasonable.html

Posted in Uncategorized | Tagged , | Leave a comment

Google gets 230 protection for fraudulent apps in Google Play

Posted on October 26, 2026 by rtushnet

Hemry v. Google, LLC, 2026 WL 2909299, No. 26-cv-01611-PCP
(N.D. Cal. Sept. 28, 2026)

Hemry downloaded a fraudulent investment app, Watsans, from
the Google Play Store, Google’s main avenue for Android operating system
smartphone users to download third-party applications. He sued for violations
of the UCL
and FAL and common law negligence. Google successfully asserted §230, which
is still doing some of its core job.

Google Play’s help pages tout its safety and security and
the presence of “safe, high-quality apps,” and Hemry alleged he relied on this.
He also alleged that scam apps often make developers’ names include some
reference to “5 [stars]” so that users think that the apps themselves have
received thousands of five-star reviews from actual users, and that the Watsans
page within the Google Play Store exhibited this and other features suggestive
of a scam application that should have put Google on notice of the
application’s true nature.

The statutory claims were “at least theoretically based on a
duty that is distinct from its duties as a publisher—namely, Google’s
obligation to ensure that its own representations are not false and misleading.”
But a “general statement” of a company’s content moderation policy “is not a
specific promise, but a [mere] description of its moderation policy, and thus
protected from liability under § 230.” “Google could put apps through safety
reviews and check, scans apps to protect users from malware, forbid harmful apps,
and ask that all apps comply with all relevant laws, while still hosting
dangerous apps despite its best efforts.” The appearance of Watsans in the
Google Play store didn’t justify an inference that Google was not conducting
the promised 10,000 safety checks or requiring evidence of regulatory
compliance, as it allegedly promised to do.

The negligence claim was also barred. Hemry alleged that
Google was negligent when it undertook to review third-party apps but failed to
exercise reasonable care in performing that undertaking. “The Ninth Circuit has
repeatedly emphasized that Section 230 protects an interactive computer service
provider from liability to the extent that liability ‘would require [the
service] to actively vet and evaluate third-party’ content.” The court noted
the moderators’ dilemma: “permitting liability on such a theory could
discourage such providers from engaging in any form of content moderation—the
negative disincentive that Congress specifically sought to eliminate through
the enactment of Section 230.”

from Blogger https://tushnet.blogspot.com/2026/10/google-gets-230-protection-for.html

Posted in Uncategorized | Tagged , | Leave a comment

court refuses to recognize Lanham Act false advertising contributory liability

Posted on October 26, 2026 by rtushnet

CarShield, LLC v. Pelican Investment Holdings, LLC, 2026 WL
2920868, No. 4:25-cv-01566-MAL (E.D. Mo. Sept. 29, 2026)

The parties compete in the market for car extended
warranties. CarShield alleged that most car extended warranties involve multiple
actors, from the seller or marketing company that promotes the coverage, to the
financing company that facilitates payments, to a third-party administrator
that manages claims and is responsible for honoring coverage when issues arise.
“CarShield’s edge in the business is that they do not outsource claims, but
rather their warranties are administered by an affiliated, in-family
administrator,” allegedly signaling  “accountability
and reliability.”

Pelican allegedly called CarShield’s existing and
prospective customers about switching their coverage to a Pelican plan, making false
statements such as telling consumers that car dealers and repair shops no
longer accept CarShield plans and that CarShield does not administer its own
claims.

Defendant Mepco, which financed the policies sold by
Pelican, sought dismissal of the claims against it and the court agreed, including
by reasoning that Lanham Act false advertising doesn’t have contributory
liability even though trademark does. No reasoning other than that most courts of
appeals haven’t recognized false advertising contributory liability. Sigh.

CarShield also sought to use agency, apparent authority, and
ratification to hold Mepco liable for its state and federal claims.

Agency: The court found that Mepco had no right to control
Pelican in its advertising and marketing activities. The parties’ agreement “did
not task Mepco with monitoring, supervising, or otherwise overseeing Pelican’s
marketing calls to customers.” A provision requiring Pelican to follow all
applicable federal and state laws, including laws relating to consumer
protection and false advertising, didn’t matter because, “within the boundaries
set by federal and state law, Pelican seems to have enjoyed free rein in
deciding how to market and advertise the vehicle service contracts.” Without
the right of control, alleged knowledge alone does not give rise to an agency
relationship under Missouri law.

Apparent authority also failed. Apparent agency is created
by “any conduct by the principal which, if reasonably interpreted, would cause
a third person to believe that the principal consents to the acts of the
agent.” Even if it were the case that Mepco represented that Pelican was acting
on Mepco’s behalf, the complaint didn’t allege that customers believed Pelican
possessed authority to act for Mepco and changed their position based on this.

Ratification arguments also failed because that requires a
principal-agent relationship.

from Blogger https://tushnet.blogspot.com/2026/10/court-refuses-to-recognize-lanham-act.html

Posted in Uncategorized | Tagged , | Leave a comment

Kalshi’s gambling services aren’t so clearly illegal as to make its offerings false advertising

Posted on October 26, 2026 by rtushnet

Ho-Chunk Nation v. Kalshi Inc., 2026 WL 2676018, No. 25-cv-698-wmc
(W.D. Wisc. Sept. 11, 2026)

[Discussing only false advertising aspects; other aspects of
this case, which are about tribal power to regulate Kalshi and its ilk, are
more important, but beyond my expertise. The court is allowing an interlocutory
appeal on those issues.]

The Ho-Chunk Nation argued, among other things, that Kalshi’s
advertisements for “legal” sports betting were false or misleading in violation
of the Lanham Act; the court dismissed the claims because, under the current
state of the law, there was no “clear and unambiguous” authority resolving
whether Kalshi’s sports event contracts are legal. Courts have so far reached
“mixed opinions” as to the legality of Kalshi’s sports event contracts. The Nation
argued that the Indian Gaming Regulatory Act clearly applied on tribal lands,
making Kalshi’s operations clearly illegal and thus reviving the Lanham Act
claims. But the court found IGRA’s statutory language is not as “definitive” or
“unambiguous” as all that. “Not only does that statute not expressly address
multiple, complex questions at issue here, including whether Congress must
authorize federal regulation of gambling before an agency may claim that right,
but to date, the only two courts to have considered the specific question
regarding IGRA and online sports events contracts have reached differing
conclusions.” Thus, even though the Nation showed a likelihood of success on
its IGRA claim, that wasn’t enough for falsity.

Nor was there a false advertising problem with calling
Kalshi’s services “sports betting” or “sports gaming”; that was true, even
though Kalshi changed its business strategy to emphasize its betting as “sports
event contracts” to make its preemption claims.

from Blogger https://tushnet.blogspot.com/2026/10/kalshis-gambling-services-arent-so.html

Posted in Uncategorized | Tagged | Leave a comment

court finds “dupe” label probative of intent to confuse and likely confusion

Posted on October 19, 2026 by rtushnet

Sol De Janeiro USA, INC. v. MCoBeauty Pty Ltd, 2026 WL
2937438, No. 24-cv-8862 (ER) (S.D.N.Y. Sept. 30, 2026)

Sol sued MCo, its competitor in the market for cosmetics, for
false advertising, trade dress infringement, and unfair competition by copying
Sol de Janeiro’s fragrance mist products, in violation of the Lanham Act and
New York General Business Law. The court found trade dress claims
insufficiently pled but trademark infringement (always the exception these
days) was plausible because MCo used Sol’s marks as tags.                           

Sol’s mists are sold with an

elongated, opaque, cylindrical
white cap [that] has stylized wording in the same white color embossed on the
cap; the cap includes a diamond or rhombus shape with letters or words inside
the shape; the geometric shape outline on the elongated, translucent bottle
(below the cap) … stretches from one side of the bottle to the other when
viewed from the front; inside the oval on the elongated bottle at the top of
the oval are the stylized words “Sol de Janeiro” or “Brazilian Crush” in white
font; inside the oval on the elongated bottle below the text and approximately
in the center of the oval are numbers in script font in larger font size than
the words above it and below it; the smaller text below the numbers is also in
white font and contains a description of the fragrance profile; no writing,
font, or graphic elements appear on the bottle underneath or otherwise outside
of the label; and a different colored translucent bottle is used for each of
the nine fragrances.

Sol fragrances

Sol alleged that the bottles’ design is synonymous with Sol
de Janeiro and that it has made substantial investments in advertising and
promoting its products in the U.S., selling over 100 million units of beauty
and cosmetic products, including the Mists. It also alleged that it had won
multiple awards, was Sephora’s 2023 biggest seller in body care, and had a high
number of U.S. social media followers.

MCo Mists are packaged in distinctly colored bottles with
prominently-displayed numbers in white script font within thin elongated
geometric designs, and elongated caps. In its own words, it makes “affordable
alternatives to luxury products.” When a consumer types the words “Sol” and
“Sol de Janeiro” into a search bar, its website produces results for its
products, including MCo Mists. In ads and reviews, MCo, influencers,
ambassadors, and reviewers compare its Mists to Sol’s, describing how the
packaging and scents are similar. Online posts and comments identify its
products as “dupes” of Sol’s. One influencer posted that MCo’s mist “smell[s]
exactly” like the Sol Mist and that it would “will last most if not all day
long” and “hold[s] better than” the Sol Mist. She stated that Sol’s Mist “has
scents of black amber plum and vanilla woods” and the MCo Mist “has scents of
black plum and vanilla.” Another influencer described the Mists, stating that
they had similar scent notes, and that the MCo Mists’ scents “last all day.” MCo
liked the post and commented “Love it!” with a heart-eyes smiley emoji.

MCo fragrances

Product reviews on MCo’s website “include comments that
suggest that customers are aware that the MCoBeauty Mists are meant to be
duplicates or copies of Sol de Janeiro Mists and smell the same.” Some comments
state that MCo’s “packaging [is] very similar to the real one” but that their
“[s]cent is a little off and watered down.” Another says that the MCo Mists
“smell[ ] exactly like” Sol’s. MCo’s review team monitors the reviews but
allows reviews mentioning Sol to remain on the website. (The horror!)

comparison

Sol argued that the comparisons were false and misleading
about the smell/lasting all day and about the relationship between the parties.
It further alleged that the products weren’t produced with the same materials, didn’t
present the exact same fragrances, and didn’t dissipate at the same rate.

The court found that the smell/duration claims were
non-false statements of opinion.  “[E]ven
a master perfumer’s experiences of the scent profiles of different products
cannot be objectively verified.”

However, the court puzzlingly found differently for the use
of keywords (Sol’s product names): they weren’t puffery because they weren’t
subjective. Hunh? In context, they are comparisons, and the court just held
that those comparisons weren’t falsifiable. But the court accepted the
allegation that MCo “intentionally attempts to confuse consumers by using” the keywords
on its website to indicate that MCo sells Sol products or has a relationship
with Sol. [Sighs in Amazon v. MTM.]

The court distinguished between “search advertising” and
keyword use on a party’s own website; Second Circuit precedent didn’t support
the claim that “customers who already navigated to MCoBeauty’s website will not
be confused that MCoBeauty’s products are not Sol de Janeiro’s.” And it was
also plausible that the use of Sol’s keywords would likely impact consumer
decisions. [Yeah, as comparisons. The things courts find plausible with
trademarks that they’d never find plausible with respect to non-trademark false
advertising never cease to amaze me.]

The trade dress claims also failed. The court noted MCo’s
argument that “the text of the reviews Sol de Janeiro uses to support its
claims demonstrates that consumers are not confused and in fact understand that
MCoBeauty Mists are ‘dupes’ or ‘lower-cost alternatives,’” which you’d think
would also be relevant to the keyword claims.

The court found that Sol sufficiently articulated its “look”
and that MCo uses its trade dress, including “prominently-displayed numbers in
a nearly identical white script font encased in thin elongated geometric
designs, color schemes, elongated caps with script on the caps, fragrances, and
ingredients.” And it pled secondary meaning, including because of MCo’s copying,
as well as confusion. But it didn’t sufficiently plead nonfunctionality. “[I]t
is unclear how the elements convey the elegance and identity of the brand and
are not designed for functional reasons like, for example, enabling the user to
see the liquid inside.”

As for confusion, the court accepted Sol’s argument that,
because dupes are comparable in aesthetic and used the same scent profiles, “consumers
may well attribute MCoBeauty’s products to Sol de Janeiro.” Even without
anecdotal evidence or survey evidence of confusion, confusion was still
plausible because of MCo’s intentional copying: “[E]vidence of intentional
copying gives rise to a presumption of actual confusion.” [This conclusion is,
of course, ridiculous as to trade dress bearing clear word marks, especially
trade dress that could well be functional.] But the court found that MCo’s
self-description as “a company engaged in the sales of affordable alternatives
to luxury products” weighed in favor of Sol because MCo “expressly capitalizes
on Sol de Janeiro’s reputation to gain customers itself.”

from Blogger https://tushnet.blogspot.com/2026/10/court-finds-dupe-label-probative-of.html

Posted in Uncategorized | Tagged , | Leave a comment

materiality divides false advertising and TM once again even with explicit falsity about official partnership

Posted on October 19, 2026 by rtushnet

Chicago Cubs Baseball Club, LLC v. Dunican, No. 24-cv-05086,
2026 WL 2937177 (N.D. Ill. Sept. 30, 2026)

The Cubs play at Wrigley Field, a historic open-air
ballpark. They sell tickets and incur significant expenses to operate Wrigley
Field. Defendant Wrigley View

is a rooftop business located
adjacent to Wrigley Field, offering views of the Chicago skyline, Lake
Michigan, and Wrigley Field. The premises include stadium-style bleacher
seating and a skydeck on the rooftop that can accommodate up to 200 guests.
From the seats at Wrigley View, customers can see into Wrigley Field over the
barriers of the stadium. Defendants sell tickets to the rooftop on days there
are games and events at Wrigley Field; in fact, it is only open for business on
game days and days with other Wrigley Field events. The Wrigley View website
includes a schedule of the Cubs’ home games with hyperlinks to purchase
tickets, comparing the Wrigley View experience to that of a ballgame at Wrigley
Field.

Wrigley View’s only revenue comes from selling tickets for
admission to the rooftop, which includes unlimited ballpark-style concessions. Ticket
prices vary depending on, for instance, the opposing team’s popularity, and
sales continue despite the Cubs’ installation of semi-transparent mesh screens
obstructing the view.

Wrigley View used to have an agreement with the Cubs where
it paid royalties and got to use Cubs marks in advertising and advertise a Cubs
endorsement, but it expired. Defendants thus reviewed and removed certain
website references to the Cubs, including changing its ticket names to simply
“Chicago vs. [the opposing team].” But the Wrigley View website still included
a PDF brochure containing the Cubs logo. Defendants also continued to include
the statement “Official Partner of the Cubs” in its marketing through 2025.

The court found actionable misappropriation. The Cubs
“created a product through extensive time, labor, skill or money,” defendants
“used [its] product in competition with [Plaintiff], gaining a special
advantage … because [Defendants] bore little or no burden of the expense of
development,” and this use caused “commercial damage.” There was no copyright
preemption, and the damage came because people would otherwise have to buy
tickets from the Cubs or an entity paying royalties to watch live. This also
constituted unjust enrichment.

There was also trademark infringement because “the use of a
trademark after a license agreement’s termination by itself establishes a
likelihood of confusion.”

However, defendants got summary judgment on the false
advertising claim despite the “undisputed” falsity and deceptiveness of the
endorsement claim, because there was no evidence of materiality. “While
deception may be presumed for a literally false statement, there is no such
presumption for materiality.” And there was insufficient evidence that “consumers
are more likely to purchase tickets to establishments that are partnered with
or endorsed by the Cubs, than those that are not…. An official partnership with
the Cubs is not an inherent characteristic to the business of viewing the Cubs’
games.” There was no witness testimony or surveys “sufficient to raise an
inference of materiality.”

from Blogger https://tushnet.blogspot.com/2026/10/materiality-divides-false-advertising.html

Posted in Uncategorized | Tagged , | Leave a comment

Google’s alleged misrepresentations about sophisticated ad tech weren’t “consumer-oriented” under NY GBL

Posted on October 14, 2026 by rtushnet

In Re Google Digital Advertising Antitrust Litig., Nos. 21-md-3010
(PKC), 21-cv-3446 (PKC), 23-cv-5177 (PKC), 21-cv-7034 (PKC), 23-cv-1530 (PKC), 2026
WL 2942363 (S.D.N.Y. Sept. 30, 2026)

As the caption indicates, this is mostly an antitrust case, which
means it’s amazing that a couple of antitrust theories survive (mostly the ones
Google is precluded from contesting because of previous losses). I’m only going
to talk about the false advertising part.

Newspaper plaintiffs brought claims that Google’s
representations about its ad tech were misleading under GBL sections 349 and
350. However, no reasonable jury could conclude that Google’s alleged
deceptions were consumer-oriented, as required by the GBL, so Google got
summary judgment on these claims.

“[B]usiness entities can qualify as ‘consumers’ if the
products or services purchased are consumer goods or their equivalent ….” And
“an act or practice is consumer-oriented when it has a broader impact on
consumers at large” and is not limited to products purchased “for personal,
family, or household use.” But “section 349 is aimed at ‘modest’ transactions
rather than complex or unique arrangements in which ‘each side was
knowledgeable and received expert representation and advice.’ ”

Google pointed to evidence that the newspaper plaintiffs
were “large, highly sophisticated companies with a strong understanding of the
ad tech at issue, and that they entered into ad-tech arrangements tailored to
their specific needs. Each has characterized itself as a ‘large publisher.’” Plaintiff
Gannett’s Rule 30(b)(6) deponent described the company as “quite sophisticated”
at “digital ad selling.” Gannett and plaintiff Daily Mail both stated in
interrogatory responses that they “constantly monitor[ ] the performance of
[their] ad tech partners” and make changes if they are not providing added
value. Daily Mail has stated that it “operates a sophisticated tech stack” and
that its advertising division employs “programmatic analysts,” “infrastructure
experts” and more than a dozen engineers.

Thus, no reasonable jury could find that Google’s alleged
deceptions about the functions of its sopisticated ad tech products were consumer-oriented
activities:

These highly sophisticated and
well-resourced plaintiffs negotiated and entered into agreements to use
Google’s ad-tech products, which they used to sell billions of ad impressions
and garner hundreds of millions of dollars in revenue. These were not “
‘modest’ transactions” that fall under the GBL’s ambit but “complex [and]
unique arrangements” that were entered into and supervised by sophisticated
experts. Plaintiffs may be correct that the claimed deceptions affected many
other publishers and billions of individual transactions, but it has been
asserted throughout this multidistrict litigation that customers of the DFP ad
server tend to be sophisticated and well-resourced publishers, in contrast to
the small publishers that use Google’s simpler AdSense product. Even accepting
the assertions of Gannett and Daily Mail that publishers suffered widespread
harm based on Google’s deceptions about bidding practices … the sophisticated
customers of DFP retained at least some ability to fine-tune and adjust the ad
server’s settings to suit their needs. The magnitude of the transactions and
the particulars unique to each publisher’s use of the ad tech preclude any finding
that Google’s purported deceptions were consumer-oriented activity.

from Blogger https://tushnet.blogspot.com/2026/10/googles-alleged-misrepresentations.html

Posted in Uncategorized | Tagged , | Leave a comment

consumer suit against kratom seller proceeds on failure to disclose theory

Posted on October 14, 2026 by rtushnet

Cheswick v. Mitra-9 Brands, LLC, 2026 WL 2949413, No. 1:25-CV-6795-LTS
(S.D.N.Y. Sept. 30, 2026)

The court allowed NY consumer protection claims against a kratom
seller to proceed. Kratom is “a plant-derived substance that affects the human
body in a manner similar to opioids.” Mitra-9 allegedly touts the “unique
benefits” of its kratom products, advertising them as “caffeine-free,
non-alcoholic, low-calorie[ ]” “plant-based beverages” that “compliment[ ][sic]
active lifestyles every day,” “help [consumers] sail through [their] workday or
support [their] post-workout routine,” and “support[ ] overall vitality and
well-being, fostering focus and a serene approach to life’s challenges.” It
allegedly advertises “the unique benefits of [its] kratom,” which comes from
“the verdant rainforests of Southeast Asia” and factors into their “specially
designed formula.” This so-called “Mitra9 difference” makes the products “an
upgrade” from “ordinary supplement drinks” and a “perfect way to shake things
up.”

However, kratom allegedly contains alkaloids that, depending
on the dose, can produce either stimulating or sedating effects by interacting
with numerous receptors in the brain. This includes the brain’s mu-opioid
receptor, which is the receptor that “produces the most addictive or
habit-forming effects.” It is allegedly similar to morphine in the risks it
poses of physical addiction and dependency, with similar withdrawal symptoms,
as well as in the fact that repeat users need to consume increasingly large
doses to achieve the same effects. Sudden cessation of kratom use can allegedly
produce severe, opioid-like withdrawal symptoms, including “irritability,
anxiety, difficulty concentrating, depression, sleep disturbance, including
restless legs, tearing up, runny nose, muscle and bone pain, muscle spasms,
diarrhea, decreased appetite, chills, inability to control temperature, extreme
dysphoria, and malaise.”

Nonetheless, most United States consumers allegedly “do not
know what kratom is and have no idea how addictive it is.” Mitra-9, despite allegedly
knowing the truth, does not warn them, but instead uses packaging that
resembles that of commonplace products like “5-Hour Energy” shots and
caffeinated energy drinks like “Redbull” and “Celsius.” The named plaintiff
initially purchased Mitra-9 Products as an “alternative for pain relief,” but,
after consuming them for several months, he began experiencing withdrawal
symptoms including “cold sweats, anxiety, joint aches, extreme irritability,
restless leg syndrome, and insomnia.”

The plaintiff pled on information and belief that Mitra-9
“interacted with growers and distributors in Southeast Asia who have disclosed
the addictive nature of kratom”; “received numerous user reports about the
addictive potential of kratom in the United States”; and possessed “studies
regarding kratom addiction.”

The court found that a price premium theory of injury was
plausible. It was logical that the class “suffered economic injury because they
… would have paid substantially less for [the Products], if they had known
that the Products posed a serious risk for addiction.” This was not the same as
pleading they never would have purchased the relevant products absent the
deception, which is apparently not enough to plead injury.

“Where, as here, the allegedly deceptive act involves an
omission, the plaintiff must show that ‘the business alone possesses material
information that is relevant to the consumer and fails to provide this
information,’ or that the plaintiff could not ‘reasonably have obtained the
relevant information [he] now claim[s] the [defendant] failed to provide.’
”  This latter path was plausibly pled in
light of allegations about the public’s general lack of familiarity with
kratom, the fact that kratom was “marketed as providing benefits without
disclosure of its addictive potential,” the inaccessibility or
incomprehensibility of the medical literature to an average consumer, the
unlikelihood that consumers would inquire about kratom when “purchasing from
third parties or online,” and packaging that mimics that of well-known
supplements and caffeinated energy drinks. “Within this broader landscape, a
reasonable consumer contemplating a purchase of Defendant’s Products—which
Defendant markets and packages as though they are innocuous health
supplements—would have no reason to suspect or inquire whether they contained an
opioid-like substance with serious addictive risks.”

Fraud by omission claims also survived.

from Blogger https://tushnet.blogspot.com/2026/10/consumer-suit-against-kratom-seller.html

Posted in Uncategorized | Tagged , , | Leave a comment

Court sours on WSI’s claims against Quince

Posted on October 14, 2026 by rtushnet

Williams-Sonoma, Inc. v. Last Brand, Inc., 2026 WL 2970363, No.
5:25-cv-10118-EJD (N.D. Cal. Sept. 30, 2026)

Williams-Sonoma (WSI), which also owns Pottery Barn, West
Elm, and Rejuvenation, sued Last Brand, commonly known as Quince, for state and
federal false advertising. The court dismissed the claims. The parties compete
in the market for kitchen and home goods. “Quince advertises that it sells
products comparable to those of traditional retailers like WSI, but at
significantly lower prices. To accomplish this, Quince represents that it
partners directly with factories to cut out the middlemen, design and produce
Quince’s products, and ship the products straight to their customers—thereby
passing on the savings to their consumers.”

WSI alleged that the cost savings were actually the result
of cutting corners and compromising quality, making comparisons to WSI’s
products false.

First, the court found that Rule 9(b) applied to the Lanham
Act claim since it sounded in fraud (even though courts often don’t do this in
trademark cases).

WSI alleged that Quince falsely represented that certain
products were made of Global Organic Textile Standard-certified
(“GOTS-certified”) cotton or organic long-staple cotton, citing a Wirecutter
review that questioned the GOTS-certification of Quince’s towels, and then
explained that, when reached for comment, Quince confirmed that the
certification of the towels was actually under review and that it would be
removed from its website. Wirecutter also questioned the GOTS-certification of
Quince’s bedsheet sets, but later verified this certification, and expressed
skepticism at statements on Quince’s website that its bedsheet sets were made
of “organic long-staple cotton” based on a sustainable-fashion expert’s opinion
that it is impossible to have cotton that is both organic and long-staple.

WSI relied only on the Wirecutter article, which didn’t
satisfy Rule 9(b). It didn’t explain “when, where, or what Quince said as to
the GOTS-certification of its towels. As to the bedsheets, the statements made
in the Article alone are insufficient to plausibly allege the falsity of the
bedsheets’ GOTS certification or Quince’s claim that the bedsheets’ cotton is
both organic and long-staple.” Wirecutter’s skepticism was insufficient;
neither the expert it talked to nor WSI allegedly actually tested Quince’s
cotton or investigated its origins. The article even said that GOTS confirmed
the certification, and anyway WSI didn’t point to any Quince ad making the challenged
representation. A false advertising claim can’t be based “solely on statements
made in a sewn-in label that a consumer would not see until after purchasing
the product, as such labels are not considered advertising.”

example Beyond Compare chart

Quince provides a “Beyond Compare” chart on many of its
product webpages, providing a side-by-side comparison of each product’s price,
delivery cost, provision of warranty, and other considerations. WSI argued that
Quince’s charts were literally false because they state or imply that Quince
sells the same products that WSI sells but for less. The court found that they
didn’t. There was no express statement that the products were the “same,” nor a
clear implication. The charts “simply compare the two companies’ products (as
well as those of other companies) side-by-side and indicate how the products
are similar but also different.”

“Like” Pottery Barn/West Elm/Williams Sonoma statements, e.g.
“Like Pottery Barn rugs, but half the price”: Similarly, “like” means “similar
to.” It was implausible that a reasonable consumer would conclude based on
these “like” statements that Quince and WSI sell identical products.

“Plus, it’s 50% less than other brands for the same
product.”: In an Instagram ad, a woman states that “I couldn’t justify spending
$300 on bedding at Pottery Barn,” and that she purchased a duvet cover from
Quince because “it’s 50% less than other brands for the same product.” WSI
alleged that this was literally false, but the court agreed with Quince that,
in context, it wasn’t literally false. Among other tings, overlaid text in the
ad states that Quince’s duvet cover is “50% LESS than Pottery Barn and
[Restoration Hardware],” and reasonable consumers know that Pottery Barn and
Restoration Hardware, which are separate companies, sell distinct products. Thus,
one “reasonable interpretation of this ad is that Quince sells the same type of
product—i.e., duvet covers—as WSI but not the exact same products.” And WSI
didn’t allege facts showing misleadingness.

Also, WSI didn’t allege facts to support its conclusory
assertion that Quince’s products were inferior. It cited only a single customer
review describing a Quince Sectional as being not “comparable to … [Pottery
Barn]” and states “in this case you truly get what you pay for.” “The Court
cannot plausibly infer from a handful of negative reviews that Quince’s
products are of inferior quality, particularly in light of the number of
positive reviews and without any facts as to the comparable quality of WSI’s
products.” Even if WSI had alleged such facts, it didn’t plausibly allege deception
from “one lone customer review,” who might not even have been misled
themselves.

WSI’s claim that the Beyond Compare charts falsely magnify
the savings consumers can expect by purchasing from Quince also failed. For
example, Quince advertised a handwoven jute rug that it sells for $299.90, and
listed a Pottery Barn rug in the Beyond Compare chart as selling for $599.90. WSI
alleged that Pottery Barn’s “Haven Jute Braided Rug,” with similar attributes
as Quince’s rug, actually costs $399. Quince responded that that rug was not handwoven,
as Quince’s was, and that Pottery Barn’s $599 “Delmont” rug had the same
attributes as Quince’s rug and is handwoven. Moreover, the charts disclose that
Quince gathered competitor pricing information within a specific timeframe and
that pricing is subject to change. WSI argued that this disclosure was an
admission that the listed competitor pricing was false and misleading, but the
court didn’t agree.

“That WSI points to other similar WSI products with lower
prices does not make it plausible that Quince advertised false prices. Nor has
WSI pled specific facts to show that a reasonable consumer would be misled into
believing that WSI sells no other similar products, at lower or higher prices,
than the WSI product listed in Quince’s chart.” Without falsity, there was no
need to consider any effect of the disclosure, but it wasn’t an admission of
falsity.

Similarly, it wasn’t false not to identify a specific
competing WSI product, and WSI’s argument that Quince didn’t substantiate its
claims of sameness was irrelevant because lack of substantiation can’t support
a private plaintiff claim.

Finally, WSI alleged that Quince misrepresented its product
reviews: an ad stating “[Quince’s] Duvet Cover Set Has 1,000+ 5-Star Reviews”
was allegedly literally false, and another stating that “200,000 5-star reviews
can’t be wrong” was both false and misleading. In addition, WSI alleged that
Quince misleadingly rounded up the average number of stars received by a
product. For example, Quince’s representation of “***** (447 REVIEWS)” at the
top of its duvet cover set product page allegeldy falsely implied that the
product received 447 five-star reviews, but the average rating was 4.7. And
customers can earn points for leaving reviews; they can redeem 1,000 points for
$10 off. This is allegedly false and misleading “because Quince fails to
disclose that its reviews are incentivized.”

WSI alleged that the duvet cover set actually had fewer than
one thousand five-star reviews in September and October 2025, when the ad was
running. Quince’s factual dispute (it argued that WSI miscounted) didn’t matter
for plausibility, but WSI failed to plead facts showing materiality or injury.

As for “200,000 5-star reviews can’t be wrong,” which was
allegedly false because the Quince cookware set depicted in the ad only had 37
reviews, the court agreed that one plausible meaning was that it referred to
all Quince product reviews. It was also plausible that it was misleading, but
WSI didn’t plead facts showing misleadingness.

As for rounding up product ratings, the court found that
additional context proximate to the “5 star” statements clearly showed that the
product received an average of 4.7 stars. “The exact product rating is
conveniently available to customers before visiting the product page, as well
as displayed at the top of the review section of each product page itself. It
is, thus, implausible that most reasonable consumers would not understand that
the stars displayed at the top of the product page are rounded and be misled
given the surrounding context.”

Review incentives: Quince argued that customers receive the
incentive simply by writing a review, regardless of whether the review is
positive or negative. And Lanham Act claims have to involve affirmative
statements, not pure failure to disclose.

As for unpled falsity, the different kinds of falsity
alleged by WSI failed to plausibly allege that “all of Quince’s false
advertisements are similar such that the Court can consider them as a whole.
Nor does the Court find that WSI has sufficiently alleged representative
examples of this larger fraudulent scheme under Rule 9(b)’s heightened
particularity requirements.” To be sure “WSI need not plead every instance of
Quince’s alleged false advertising,” but the current complaint didn’t offer “any
parameters or limitations as to this amorphous false advertising scheme” that
would put Quince on notice of the claims against it. “Nor is Quince better
situated to know the content of all of its advertisements, as Quince’s website
and advertisements are publicly available.”

The court did find that WSI had standing under California consumer
protection law, reasoning (correctly in my view) that although UCL etc. false
advertising liability requires that the consumer rely on the false
advertising, it does not require that the plaintiff do so as long as
there is harm causation.

from Blogger https://tushnet.blogspot.com/2026/10/court-sours-on-wsis-claims-against.html

Posted in Uncategorized | Tagged , | Leave a comment