Monthly Archives: March 2014

tuna surprise: undisclosed slack fill was plausibly misleading

Hendricks v. StarKist Co., No. 13–cv–729, 2014 WL 1244770 (N.D. Cal. Mar. 25, 2014) Hendricks brought the usual California claims against Starkist alleging that its canned tuna products were underfilled (anywhere from 1.1% to 17.3% less tuna than there was … Continue reading

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"I wouldn’t have bought it if I’d known" is enough for standing, 9th Circuit says again

Galope v. Deutsche Bank National Trust Co., No. 12–56892, 2014 WL 1244279 (9th Cir. Mar. 27, 2014) The court of appeals reversed a grant of summary judgment in favor of Deutsche Bank and other defendants.  Galope adequately alleged that she … Continue reading

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promotion of expensive device for off-label uses not shown likely to deceive

Zeltiq Aesthetics, Inc. v. BTL Industries, Inc., No. 13–cv–05473, 2014 WL 1245222 (N.D. Cal. Mar. 25, 2014) (magistrate judge) Zeltiq sued defendants for allegedly falsely advertising that a BTL medical device was FDA approved for fat reduction and body contouring.  … Continue reading

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Must false advertising claims always be pled with particularity?

LT Int’l Ltd. v. Shuffle Master, Inc., 2014 WL 1248270, No. 2:12–cv–1216 (D. Nev. March 26, 2014) Here, the court disapproved a five-page complaint, finding that the false advertising and related claims sounded in fraud but didn’t satisfy Rule 9(b), … Continue reading

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A mocking Snickers ad and Google v. Garcia

Sociological Images covers a Snickers ad that apparently shows real women responding to supportive, nonsexist comments from construction workers. “The first thing women do is get uncomfortable, revealing how a lifetime of experience makes them cringe at the prospect of … Continue reading

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Organic v. natural

Via an eagle-eyed student, a great video on misleading “natural” claims.  Note that the organization promotes organic products—is it subject to Lanham Act claims by a producer of “natural” foods?

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Relevant to my interests: Jensen Ackles and the right of publicity

It is a truth universally acknowledged that Jensen Ackles is a very attractive man.  So attractive that he tends to show up in a variety of advertising contexts that, I suspect, his agent does not know about.  Consider this example, … Continue reading

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Taco Bell endorsed by Ronald McDonalds

H/T Deborah Gerhardt. Via AdAge: Ronald McDonald loves Taco Bell’s breakfast. That’s what Taco Bell is saying in its campaign introducing its biggest menu rollout yet. The Mexican food chain located a slew of actual Ronald McDonalds and got them … Continue reading

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use of an established mark as false advertising

Topek, LLC v. W.H. Silverstein, Inc., No. 12–cv–494, 2014 WL 1124311, 2014 DNH 060 (D.N.H. Mar. 20, 2014) This colorful business dispute caught my eye because “false advertising through use of a trademark” cases are so rare, and this opinion … Continue reading

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We all stand: Static Control can sue

Lexmark International, Inc. v. Static Control Components, Inc., No. 12–873 (March 25, 2014) Justice Scalia, writing for a unanimous Court, affirmed the Sixth Circuit, in the process articulating a new standard: “To invoke the Lanham Act’s cause of action for … Continue reading

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