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

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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

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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

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consumer false advertising plaintiffs can’t use surveys the way competitors can

Posted on October 13, 2026 by rtushnet

Sinatro v. Barilla America, Inc., No. 22-cv-03460-ASK (N.D.
Cal. Sept. 30, 2026)

Deception of a substantial number of reasonable consumers,
even well less than a majority, can be the basis of Lanham Act liability. But consumer
protection cases have difficulty handling this, and so they make up
all-or-nothing tests. Here, that means nothing.

closeup on challenged claim

Sinatro sued Barilla for the usual California claims, alleging that the claim “Italy’s #1 Brand of Pasta” on its boxes deceived consumers into thinking it was made in Italy from Italian ingredients when, in fact, that pasta was made in the United States from non-Italian ingredients. (This claim has now been removed.) On each of the relevant boxes, the side label with nutrition facts also included the representation “Made in the U.S.A. with U.S.A. and imported ingredients” in white text directly beneath Barilla’s name and location, which are statements required by FDA regulation.

side disclosure

nutrition panel

In Sinatro’s survey, 57 percent indicated that the statement “does communicate” that “[t]he product’s ingredients are sourced from Italy,” 32.3 percent indicated that the statement “does not communicate this,” and 10.7 percent selected the “Don’t know / not sure” option. A separate conjoint survey found a 9.9% price premium associated with the claim.

plaintiffs’ survey prompt

Barilla’s survey replicated Sinatro’s but included five—instead of just one—possible interpretations. In response, 84.0 percent of respondents answered affirmatively for “[t]he brand is the most popular pasta brand in Italy,” while 42.3 percent did so for “[t]he product’s ingredients are sourced from Italy.” Perhaps unsurprisingly, Barilla’s surveyor decided to remove certain “inattentive” or “confused” respondents from the sample, reducing the 42.3 percent “from Italy” figure to either 34.2 or 27.5 percent, depending on how you counted, whereas the 84.0 percent “most popular” figure remained nearly unchanged (dropping only to 83.5%).

Barilla survey prompt

I would note that these reduced figures are more than enough to win a Lanham Act false advertising claim. Also, the reduction came from counting misunderstandings of other claims, which is one way of declaring a bunch of actual consumers to be unreasonable. (The 34.2 percent figure comes from eliminating respondents who indicated that a “[n]on-GMO” label means that the product is gluten free, while 27.5 percent comes from eliminating these same respondents and also those who indicated that the Challenged Representation means that “[t]he brand is the oldest producer of pasta in Italy.”)

Did the survey even matter? Front-of-product deception is actionable under consumer protection law despite qualifiers on the side panel, but only if the front is “unambiguously” deceptive. This isn’t the Lanham Act concept: a front label is not “ambiguous” “simply because it is susceptible to two possible meanings” but rather “when reasonable consumers would necessarily require more information before reasonably concluding that the label is making a particular representation.” That is, reasonability is interposed as a separate, normative screen, regardless of what a substantial number of consumers actually think.

The court excluded plaintiff’s survey under Daubert. (Again, there’s plenty of Lanham Act precedent, but courts tend not to cite across regimes, which given the different meanings of “ambiguous” is probably overall a good thing, though a comprehensive harmonization would also be welcome.) The court found the consumer perception survey biased (and also criticized the conjoint analysis because it “impermissibly measures the undifferentiated impact of all interpretations of the Challenged Representation without isolating the impact attributable to only misleading interpretations”).

The survey asked only whether the package conveys that “[t]he product’s ingredients are sourced from Italy,” and provided only three possible responses: an affirmative answer, a negative answer, and “[d]on’t know / not sure.” This was biased because by only asking that one question, the survey steered respondents “to that very meaning and gives them no opportunity to indicate other meanings.” This seems inconsistent with most Lanham Act survey cases, which generally (1) allow questions about specific messages, at least after an initial “did the ad say anything about?” question, and (2) treat offering yes/no/not sure options as enough to avoid impermissible leading.

The court also held that the survey “fails to capture the possibility that respondents understand the Challenged Representation to have multiple meanings,” and thus couldn’t assist the trier of fact.  The don’t know/not sure option wasn’t enough because the survey design “bias[es] the survey by suggesting to respondents, at least implicitly, that they should believe there is at least some sort of relationship between the different items when the possibility might not even have occurred to the vast majority of consumers who see the items.”

Survey respondents who answered [the] question affirmatively might have never made an association with Italian ingredient sourcing had the survey not fed it to them. And respondents who normally would think the statement means something else entirely may have abandoned that opinion upon intuiting from the survey itself what they should take the Challenged Representation to mean. A “[d]on’t know /  not sure” option does not negate such effects, because the question by its design elicits them before respondents even go to choose an answer.

Query: Under this analysis, is any closed-ended question allowable?

Without the survey, “no reasonable juror could conclude on the remaining record evidence that ‘members of the public are likely to be deceived.’” Named plaintiffs’ testimony wasn’t enough because, “[a]lthough surveys and expert testimony regarding consumer expectations are not required, a few isolated examples of actual deception are insufficient.”

To the extent that the words “Italy’s #1 Brand of Pasta” make a claim about brand—namely, that Barilla is the foremost brand of pasta in Italy—undisputed record evidence showed that Barilla had leading market share, and the court also found this the most plausible meaning.

So, would consumers necessarily require more information before concluding that the pasta was Italian in origin? The court rejected the most “plaintiff-friendly” reading of 9th Circuit precedent, which would find ambiguous only those labels that “ma[k]e no representation at all” or, like “Nature Fusion,” “[are] so devoid of any concrete meaning that there [is] nothing from which any inference could be drawn or on which any reasonable belief could be based.” That would make ambiguity essentially a puffery defense. The court wasn’t willing to do that; to do so would mean finding the front label ambiguous “because it is at least amenable to the (undisputedly false) meaning that the Plaintiffs here advance—i.e., that the pasta is made in Italy with Italian-sourced ingredients.”

But using this standard “would effectively mean that any label susceptible to at least one concrete false meaning would be actionable.” [Note that this is in fact the rule in Lanham Act cases, where a substantial number of reasonable consumers would receive this message as shown by acceptable evidence of actual consumer reception. This is because Lanham Act plaintiffs are allowed to aggregate consumer behavior even if we accept substantial variation among consumers; probabilistic liability is ok for them, whereas consumer plaintiffs must rely on a presumption that all consumers are likely to be deceived, so courts set the standard higher (even though that’s not strictly logically entailed).] Anyway, to do so would be inconsistent with Trader Joe’s, which found that “100% New Zealand Manuka Honey” could support multiple meanings, including such false meanings as “that its contents were 100% derived from the Manuka flower.”

Thus, Barilla’s front label was ambiguous, and the survey, even if admissible, didn’t address ambiguity and even reinforced the conclusion that the brand popularity meaning was the predominant one.  “[A] reasonable consumer would necessarily require more information before concluding that the statement should instead be understood to mean something else entirely. Accordingly, Barilla has made no ‘unambiguously deceptive’ claim.” And the side label clarified US origin, making it not misleading as a matter of law.

The court further justified its holding as providing an easily administrable rule to lower courts and clear guidance to retailers. “[S]ellers may have confidence that so long as they do not make ‘unambiguously deceptive’ statements on their front labels, they may rely on their back and side labels to clear up misunderstandings.” And if consumers unreasonably persist in being fooled, so much the worse for them!

from Blogger https://tushnet.blogspot.com/2026/10/consumer-false-advertising-plaintiffs.html

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Schedule A false advertising TRO dissolved for the defendants who showed up

Posted on October 13, 2026 by rtushnet

Kiel James Patrick, LLC v. Partnerships & Unincorporated
Associations Identified on Schedule A, 2026 WL 3015613, C.A. No.
25-cv-633-MRD-AEM (D.R.I. Oct. 7, 2026)

KJP filed a Schedule A claim against a bunch of defendants
for false designation of origin/false advertising; many defaulted, while two
answered and got the TRO against them dissolved.  

KJP sells seasonal and festive sweaters; defendants sell
competing sweaters. The defendants argued that particularized review of the claims
against them was appropriate; KJP disagreed, arguing that the defendants
delayed unduly and pointing to the allegations the court had previously
accepted in granting and extending the TRO, which thereby became a preliminary
injunction. The court was not impressed by KJP’s argument.

False designation of origin: KJP failed to show that the
answering defendants used its photos. KJP alleged that, even if they didn’t copy
the photos exactly, they re-generated them using AI. (Why this would violate
the Lanham Act, especially given Dastar, is left as an exercise for the
reader.) The basic problem was that there was no evidence “that the challenged
images were copied from [KJP’s] website, altered from [its] photographs, or
generated by AI to impersonate [it].” Instead, the answering defendants offered
product-image evidence from an “independent sourcing agent, 1688.com,” as their
source. “A review of Plaintiff’s website further reveals that the images
submitted by the Answering Defendants look dissimilar to Plaintiff’s
advertising materials, even if there is some similarity between the sweaters.” That
similarity wasn’t confusion about origin.

False advertising: This was the same theory that defendants
used KJP’s advertising materials, particularly its website images, without
permission. KJP argued that defendants sold “imitation” products. But that’s
not a false representation, nor does it show consumer deception. “Furthermore,
there is no evidence on the current record that the Answering Defendants copied
Plaintiff’s trademarks or made a particular claim about their products that is
verifiably false or misleading.”

As Eric Goldman has often noted about Schedule A cases,
these allegations, at least as to these defendants, should have been thin
enough to deny the TRO; the plaintiff apparently didn’t supply convincing
pictures even when challenged to do so.

from Blogger https://tushnet.blogspot.com/2026/10/schedule-false-advertising-tro.html

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dismissal of NYC’s consumer protection claims against fossil fuel companies affirmed

Posted on October 13, 2026 by rtushnet

City of New York v. Exxon Mobil Corp., 2026 WL 3023932, Appeal
No. 6583, — N.Y.S.3d —- (App. Div. Oct. 8, 2026)

False advertising claims against fossil fuel companies for
contributing to climate change are hard to win. The City alleged that
defendants engaged in “deceptive … trade practice[s]” proscribed by the
City’s Consumer Protection Law (CPL) “by misrepresenting the purported
environmental benefits of using their fossil fuel products” (“product
greenwashing”) and “by creating a misleading impression of the role of
renewables [i.e., renewable energy] in their businesses” (“corporate
greenwashing”). The appellate court affirmed the dismissal
of the claims.

Product greenwashing: The alleged deceptiveness came from
failure to disclose that fossil fuels contribute to climate change, but the
connection was already public information. If, as alleged, consumers care about
fossil fuels’ contribution to climate change, they couldn’t be duped by failure
to disclose. This was true even if the court didn’t apply the reasonable
consumer standard but rather the older standard: the effect the statement would
have upon a consumer falling within the ranks of “the ignorant, the unthinking
and the credulous who, in making purchases, do not stop to analyze but are
governed by appearances and general impressions.” “Because the statements at
issue disclose that the improved products are gasoline, even unsophisticated
consumers – given the City’s foundational assumption of near-universal
understanding of the link between gasoline use and climate change – would
necessarily understand that use of the improved products contributes to climate
change.” Comparative statements that improved products would produce fewer emissions
than other gasoline products could not “lead even an incautious consumer to
understand defendants to be representing that the environmental impact of use
of the new products to power private vehicles would be comparable to the impact
of taking public transportation, bicycling, walking, or using electric or
hybrid cars.” Nor were defendants required to quantify the reduction in
emissions in their ads. “Nor has the City come forward with evidence that the
reduction in emissions made possible by the gasoline products at issue is so
minute, as compared to other gasolines, as to be legally insignificant.”

As to the corporate greenwashing claim, the court concluded
that the complaint did not sufficiently allege that the statements were “made
in connection with the sale” or “offering for sale” of “consumer goods or
services” “because none of the clean alternative energy products referenced in
the statements were sold to consumers, either in New York or anywhere else.”

Although the CPL bans conduct that “has the capacity,
tendency or effect of directly or indirectly deceiving or misleading consumers,”
“[e]ven an allegation that a statement has the tendency to indirectly deceive a
consumer must still be ‘made in connection with the sale’ of a consumer good or
services” to fall within the scope of the prohibition.

from Blogger https://tushnet.blogspot.com/2026/10/dismissal-of-nycs-consumer-protection.html

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would-be competitor lacks Lanham Act standing

Posted on October 13, 2026 by rtushnet

Onego Bio Inc. v. Clara Foods Co., 2026 WL 3033777, No.
1:25-cv-01131-JDW (D. Del. Oct. 9, 2026)

Onega Bio sought a declaratory judgment that defendant EVERY’s
patent covering recombinant ovalbumin protein was invalid and unenforceable and
that Onego didn’t not infringe the patent, but there was no imminent,
substantial controversy between the parties. I’ll focus on the also-failed
Lanham Act false advertising claim.  

Onego, according to the complaint, “specializ[es] in the
production of animal-free egg proteins through precision fermentation” and
“aims to revolutionize the food industry by offering sustainable and ethical
alternatives to traditional egg products.”

“In 2024, Onego secured funding to scale-up production and
expand its market presence in North America.” It plans to build a
130,000-square-foot facility in Wisconsin to produce its protein product. “As
part of Onego’s expansion efforts in the United States, Onego has shipped its
protein products here.”

EVERY competes in the market for animal-free egg proteins (using
yeast instead of Onego’s fungi). EVERY allegedly made false representations
about its own product by claiming in press releases and presentations that the
egg protein it makes is “equivalent,” “bio-identical,” and “nature-equivalent”
to what is found in natural eggs, while allegedly EVERY’s egg protein in fact contains
up to 13 amino acids not found in natural egg protein, including amino acids
from yeast proteins.

The court held that Onego lacked statutory standing; it didn’t
plead injury to commercial sales in more than conclusory fashion. The complaint
didn’t allege that Onego makes or sells its products in the United States.
Shipping protein products into the US wasn’t enough, given that Onego hadn’t
even broken ground on its planned production facility.  “At most, Onego’s allegations suggest that it
hopes to enter the U.S. market and become EVERY’s competitor. Thus, there is no
basis for me to presume that Onego suffered a commercial injury.”

Nor did reputational harm claims fare better. Onego didn’t
plead facts supporting its assertion that EVERY’s claims about its own product harmed
Onego’s reputation. Nor did alleged risk to the egg protein replacement market
as a whole state a cognizable injury, even if that market is nascent.

from Blogger https://tushnet.blogspot.com/2026/10/would-be-competitor-lacks-lanham-act.html

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candy buyers fail to allege difference between pumpkin & Jack-o’-lantern shape

Posted on September 22, 2026 by rtushnet

Vidal v. Hershey Co., No. 24-60831-CIV-DAMIAN, 2026 WL
2730302 (S.D. Fla. Sept. 16, 2026)

Reese’s Peanut Butter Pumpkins with carved face on package
actual candy

There’s a Reese’s Peanut Butter pumpkin. It was advertised with a Jack-o’-lantern package, but the actual pumpkin-shaped chocolate had no such face. The package that says, in all capital letters: “DECORATING SUGGESTION.” (So you’re supposed to carve off little strips of chocolatey coating? With what tools? Hope your house is really cool, given the pliability of the coating at room temperature!) It is possible to make chocolates with molds that would give them Jack-o’-lantern faces.

Jack-o’-lantern molds for candy

 Plaintiffs sued for false advertising under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

The court found lack of standing due to lack of injury in fact. “A plaintiff may establish a concrete injury-in-fact under a benefit-of-the-bargain theory by showing that they paid for a product but received something of lesser value or that was completely worthless.” FDUTPA “does not provide for the recovery of nominal damages, speculative losses, or compensation for subjective feelings of disappointment.”

Plaintiffs didn’t that the Reese’s Peanut Butter Pumpkins they purchased were not edible or that they suffered any side effect, health issue, or harm from consuming the product. Nor have did they allege that the sale of the Peanut Butter Pumpkins was illegal. So there was no benefit-of-the-bargain injury.

This was true even though plaintiffs alleged that they purchased the products at issue “for the novelty/party-display value of the depicted faces, not merely for generic chocolate-and-peanut-butter candy.” Still, “their only injury is their subjective disappointment.” And the disclaimer “DECORATING SUGGESTION” was next to the image of the carved chocolate pumpkin; while the product may not have the “cool looking carving of a pumpkin’s mouth and eyes,” it does have “a novel pumpkin shape.”

A price premium theory also failed despite allegations that, “[i]n retail commerce, Reese’s Peanut Butter Pumpkins are priced higher per ounce than regular Reese’s Peanut Butter Cups across mainstream retailers and the manufacturer’s website.” But they only alleged a price premium at Target, Walmart, and Hershey’s, not at Publix where they bought. (This seems like a perfectly reasonable inference, though, and plaintiffs did allege that this was representative. Ah, the manipulability of Twiqbal.) But also, that still didn’t show economic injury, because plaintiffs still received candy actually shaped like pumpkins, which could also justify a price premium.

from Blogger https://tushnet.blogspot.com/2026/09/candy-buyers-fail-to-allege-difference.html

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Amicus in section 230 false light case

Posted on September 17, 2026 by rtushnet

 The EFF, Eric Goldman, Jess Miers, Mark Lemley, and I filed a brief in Does 1-10 v. Freesites in the Fourth Circuit, arguing that context–the other third-party content surrounding a post–cannot be the basis for a false light claim against a host site. 

from Blogger https://tushnet.blogspot.com/2026/09/amicus-in-section-230-false-light-case.html

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Amicus in Rise & Shine

Posted on September 16, 2026 by rtushnet

 I’ve submitted a brief on behalf of trademark scholars in support of neither party.

Summary of argument:

The issue before the Court is whether trademark strength in a likely confusion analysis is a question of fact or a question of law, but this question actually bears on the confusion inquiry as a whole. Sometimes, factual issues predominate in this consideration, but sometimes legal issues do.

This conclusion may sound surprising given the phrase “likelihood of confusion,” which sounds empirical. The full version of the standard—likely confusion among a substantial number of reasonable consumers—clarifies that normative legal judgments (what is substantial, what is reasonable, and what constitutes confusion) are crucial to infringement inquiries. Infringement inquiries therefore are mixed questions of law and fact in which legal analysis can often predominate.

The hallmark of fact finding that deserves appellate deference and clear-error review is individualized adjudication. The multifactor framework to assess likelihood of confusion that courts have regularly used in the 80 years since the enactment of the Lanham Act involves propositions that sound factual, but that have never—not in this case, nor in any other—been tested by factfinding at the district court level.

This includes the question of trademark strength. The theory that “suggestive marks are conceptually stronger than descriptive marks with secondary meaning, thus favoring the plaintiff more in the confusion inquiry,” is not an “adjudicative fact” found by the factfinder based on individualized evidence.

Contrary to some suggestions in Petitioner’s brief, conceptual strength inquiries do not involve direct investigation of consumer understanding of the extent to which a word functions to indicate source when applied to a product. Conceptual strength is partly empirical (involving an assessment of, inter alia, dictionary definitions and other marketplace uses) and partly a matter of prediction about whether people will need to use “imagination and thought” to connect a word with the goods or services at issue. No trademark is “suggestive” or “descriptive” as a state of nature; Judge Friendly accepted that his division was “rough[]” at best. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976).

Furthermore, the propositions that suggestive marks are “stronger” than descriptive marks with secondary meaning, and thus that, all else being equal, a mark’s status as suggestive makes confusion more likely than if it were descriptive, are broad claims about reality.

Courts evolved the multifactor confusion test over time, and they are still adding variations for new situations—as they should be. As with many torts, the existence of trademark infringement (given a set of adjudicative facts) is a classic mixed question of law and fact. No resolution of this case should treat either likelihood of confusion or trademark strength as a purely factual question.

from Blogger https://tushnet.blogspot.com/2026/09/amicus-in-rise-shine.html

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