Monthly Archives: April 2014

predictions of future events aren’t actionable false advertising

Posted on April 9, 2014 by rtushnet

Duty Free Americas, Inc. v. Estée Lauder Cos., 2014 WL 1329359, No. 12–60741 (S.D. Fla. Mar. 31, 2014) This is mostly an antitrust case; the antitrust claims are all dismissed because no one wins antitrust cases.  DFA operates duty-free stores … Continue reading →

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using metatags/buying AdWords isn’t trademark use

Posted on April 9, 2014 by rtushnet

Radiancy, Inc. v. Viatek Consumer Products Group, Inc., 2014 WL 1318374, No. 13–cv–3767 (S.D.N.Y. Apr. 1, 2014) And now for a different result on the pleading standards for affirmative defenses!  Among the many arguments in this case, Viatek raised unclean … Continue reading →

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Twiqbal doesn’t apply to unclean hands defense

Posted on April 9, 2014 by rtushnet

Newborn Bros. Co. v. Albion Engineering Co., No. 12–2999, 2014 WL 1272109 (D.N.J. Mar. 27, 2014) Newborn sued its competitor Albion for allegedly falsely advertising its dispensing guns (used to apply sealants and adhesives) as made in the US when … Continue reading →

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Statements about quality care were puffing despite standard of care

Posted on April 8, 2014 by rtushnet

Intermountain Stroke Center, Inc. v. Intermountain Health Care, Inc., No. 2:13–cv–00909, 2014 WL 1320281 (D. Utah Mar. 31, 2014) ISC sued IHC for violations of the Lanham Act and Utah’s Truth in Advertising Act and intentional interference with actual/prospective economic … Continue reading →

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Statements to sellers of must-have component actionable under Lanham Act

Posted on April 8, 2014 by rtushnet

TriStar Investors, Inc. v. American Tower Corp., No. 3:12–cv–0499, 2014 WL 1327663 (N.D. Tex. Apr. 3, 2014) Cell towers are mostly owned and operated by tower companies, which rent wireless carriers the right to locate equipment on their towers.  Most … Continue reading →

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Is flexibility the same as unpredictability?

Posted on April 8, 2014 by rtushnet

Thought on the anti-fair use meme being used, mostly, to oppose the introduction of fair use in other countries: the criticism is that fair use’s flexibility means that it’s inherently and undesirably unpredictable. (See, e.g., the Kernochan Center’s submission to … Continue reading →

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dispute over reliability of state of the art goes to trial

Posted on April 8, 2014 by rtushnet

Nellcor Puritan Bennett LLC v. CAS Medical Systems, Inc., No. 2:11–cv–15697, 2014 WL 1304428 (E.D. Mich. Mar. 28, 2014) The parties compete to sell cerebral oximeters, used by surgeons and anesthesiologists to monitor the oxygen saturation level of blood in … Continue reading →

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Juxtaposed claims can produce literal falsity

Posted on April 8, 2014 by rtushnet

Groupe SEB USA, Inc. v. Euro–Pro Operating LLC, No. 14–137, 2014 WL 1316039 (W.D. Pa. Apr. 1, 2014) (magistrate judge) The parties compete to sell household steam irons.  Plaintiff’s are sold under the name Rowenta, allegedly the top sellers by … Continue reading →

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failure to conform to dog breed standard isn’t literally false

Posted on April 7, 2014 by rtushnet

It’s really more of a guideline. Wagner v. Circle W Mastiffs, No. 2:08–CV–00431, 2014 WL 1308713 (S.D. Ohio Mar. 31, 2014) I’m skipping the many and complex defamation claims.  The Lanham Act bit: the Lanham Act plaintiffs alleged that the … Continue reading →

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What does Lexmark mean for the "commercial advertising or promotion" test?

Posted on April 7, 2014 by rtushnet

Goodman v. Does 1–10, No. 4:13–CV–139, 2014 WL 1310310 (E.D.N.C. Mar. 28, 2014) The first post-Lexmarkopinion I’ve seen, and a thoughtful one at that. The complaint alleged various defamation and unfair competition claims based on postings on a website, localdirtbags.com, … Continue reading →

Posted in commercial speech, defamation, http://schemas.google.com/blogger/2008/kind#post, standing | Leave a comment