Monthly Archives: September 2018

Non-TM owner can plead false advertising claim for confusing use of TM it used to own

Desmond v. Taxi Affiliation Services LLC, 2018 WL 4589999, No. 17 C 8326 (N.D. Ill. Sept. 25, 2018) Desmond is the Chapter 7 Trustee for the Bankruptcy Estate of Yellow Cab Affiliation, a former Chicago taxicab affiliation with over 1600 … Continue reading

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Another malware misattribution claim fails

PC Drivers Headquarters, LP v. Malwarebytes, Inc., 2018 WL 2996897, No. 18-CV-234-RP (W.D. Tex. Apr. 23, 2018) PC Drivers “offers software designed to help customers optimize the processing speed of their computers and identify software drivers ready to be updated.” … Continue reading

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Blast from the past: nominative fair use avant la lettre

Polyglycoat Corp. v. Environmental Chemicals, Inc., 509 F.Supp. 36 (S.D.N.Y. 1980) Found this in an unrelated search and it made me think about the utility (if any) of the nominative fair use category. Plaintiff sued defendant for advertising of defendant’s … Continue reading

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Pa. Supreme Court fixes ridiculously overbroad holding of puffery

Commonwealth v. Golden Gate National Senior Care LLC, — A.3d —-, 2018 WL 4570102, No. 16 MAP 2017 (Pa. Sept. 25, 2018) The Pennsylvania Supreme Court reinstated a bunch of claims against a bunch of nursing homes under the state … Continue reading

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modifying a false advertising injunction is justified when likelihood that claim is false has changed

De Simone v. VSL Pharmaceuticals, Inc., No. TDC-15-1356, 2018 WL 4567111 (D. Md. Sept. 24, 2018) De Simone sought modification of a preliminary injunction governing statements it could make about a probiotic product, VSL#3 and its relationship to De Simone’s … Continue reading

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falsity from former customer satisfies Lexmark standard; not so for once-potential customer

Frompovicz v. Niagara Bottling, LLC, No.. 18-54, 2018 WL 4465879  (E.D. Pa. Sept. 18, 2018) Prior ruling covered here. Plaintiff (on behalf of a putative class) is a water extractor. Defendant Land is a directly competing extractor and the bottler/distributor … Continue reading

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failure to detail harm dooms medical food complaint despite plausible falsity

Alfasigma USA, Inc. v. Nivagen Pharmaceuticals, Inc., 2018 WL 4409350, No. 2:17-cv-01974-MCE-GGH (E.D. Cal. Sept. 17, 2018) Somewhat surprisingly, failure to tell a detailed harm story torpedoes this complaint; given the specific allegations of falsity, I wonder if it will … Continue reading

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only “laconic” resellers allowed: court refuses to dismiss complaint against reseller of Chanel goods

Chanel, Inc. v. WGACA, LLC, 2018 WL 4440507, No. 18 Civ. 2253 (LLS) (S.D.N.Y. Sept. 14, 2018) Depressing but unsurprising: Chanel’s claims against used goods-seller What Goes Around Comes Around proceed because WGACA may have been too forward in telling … Continue reading

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Accurate statement that SPLC called a group a “hate group” isn’t plausibly misleading without more

Liberty Counsel, Inc. v. GuideStar USA, Inc., — Fed.Appx. —-, 2018 WL 4339716 (Mem), No. 18-1157 (4th Cir. Sept. 11, 2018) Who controls procedure controls substance.  The district court granted GuideStar’s motion to dismiss Liberty’s Lanham Act false advertising claim … Continue reading

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New verse, same as the first in Sony/Michael Jackson case

Serova v. Sony Music Entertainment, 2018 WL 4356891, — Cal.Rptr.3d —-, No. B280526 (Ct. App. 2018) The court amends its opinion finding that Sony’s advertising that Michael Jackson was the performer of all the songs on the posthumous Jackson album … Continue reading

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