Monthly Archives: November 2018

Copying others’ claims without substantiation for one’s own services can be false

Posted on November 30, 2018 by rtushnet

TRUSTID, Inc. v. Next Caller, Inc., No. 18-172-LPS, 2018 WL 6242493 (D. Del. Nov. 26, 2018) (report and recommendation) The magistrate addressed trade secret and false advertising claims, though there are also patent claims in the case. The relevant facts … Continue reading →

Posted in Uncategorized | Tagged | Leave a comment

Restaurant can’t bring unfair competition claim against Trump Old Post Office claim for using Trump’s name to draw business

Posted on November 28, 2018 by rtushnet

K&D, LLC v. Trump Old Post Office, LLC, No. 17-731 (RJL), 2018 WL 6173449 (D.D.C. Nov. 26, 2018) Plaintiff owns Cork Wine Bar, located in the downtown Washington, D.C. area. Cork argued that it faced unfair competition from the Trump … Continue reading →

Posted in Uncategorized | Tagged | Leave a comment

Honey Badger don’t care for different reasons: court fixes artistic relevance but still doubles down on transformativeness

Posted on November 26, 2018 by rtushnet

Gordon v. Drape Creative, Inc., No. 16-56715 (9th Cir. Nov. 20, 2018) Previous opinion discussed here; amicus brief that may have influenced the court to withdraw that opinion and put out a superseding one here. The court found a triable … Continue reading →

Posted in Uncategorized | Tagged , , | Leave a comment

Twitter’s promise of free speech isn’t false advertising just because it suspends abusive users

Posted on November 20, 2018 by rtushnet

Kimbrell v. Twitter Inc., 2018 WL 6025609, No. 18-cv-04144-PJH (N.D. Cal. Nov. 16, 2018) Kimbrell alleged that “Twitter employs twitter trolls who are responsible for goading Twitter users who support President Donald Trump into engaging in purportedly abusive conduct, which … Continue reading →

Posted in Uncategorized | Tagged , , | Leave a comment

This is personal: Diet Coke obesity suit dismissed even after repleading

Posted on November 20, 2018 by rtushnet

Geffner v. Coca-Cola Co., 2018 WL 6039325, No. 17 Civ. 7952 (LLS) (S.D.N.Y. Oct. 31, 2018) Plaintiffs alleged that, by marketing Diet Coke as “diet,” Coca-Cola misleads consumers into believing that drinking Diet Coke will assist in weight loss or … Continue reading →

Posted in Uncategorized | Tagged , , , | Leave a comment

Pipe down: court awards minimal disgorgement where willful falsity was limited in time

Posted on November 20, 2018 by rtushnet

Pipe Restoration Technologies, LLC v. Coast Building & Plumbing, Inc., 2018 WL 6012219, No. 13-cv-00499-JDE (C.D. Cal. Nov. 16, 2018) The parties (defendant will be called PRPI) compete for pipe restoration work involving the use of epoxy in small diameter, … Continue reading →

Posted in Uncategorized | Tagged , | Leave a comment

Bringing a false advertising claim with unclean hands leads to fee award

Posted on November 12, 2018 by rtushnet

Certified Nutraceuticals, Inc. v. Avicenna Nutraceutical, LLC, 2018 WL 5840042, No. 16-cv-02810-BEN-BGS (S.D. Cal. Nov. 7, 2018) The court awarded roughly $170,000 in fees in this Lanham Act false advertising case because the plaintiff engaged in the same conduct (falsely … Continue reading →

Posted in Uncategorized | Tagged , | Leave a comment

literal falsity still needs to be material, and court wants a survey or other direct evidence thereof

Posted on November 12, 2018 by rtushnet

LivePerson, Inc. v. [24]7.AI, Inc., 2018 WL 5849025, No. 17-cv-01268-JST (N.D. Cal. Oct. 26, 2018) LivePerson “provides online chat engagement services through a digital platform that it sells to website operators.” That is, it helps websites provide real-time text-based communications … Continue reading →

Posted in Uncategorized | Tagged , | Leave a comment

False patent marking claim fails in cannabis case despite clear falsity/motive to crush competition: mostly it didn’t work

Posted on November 10, 2018 by rtushnet

Kremerman v. Open Source Steel, LLC, 2018 WL 5785441, No. C17-953-BAT (W.D. Wash. Nov. 5, 2018) This case involved cannabis distillation equipment. Kremerman sued OSS for design patent and trade dress infringement and related claims. OSS counterclaimed for false patent … Continue reading →

Posted in Uncategorized | Tagged , | Leave a comment

Wipe on, wipe off: after survey excluded, plaintiff wins jury verdict on false advertising windshield protector claim

Posted on November 10, 2018 by rtushnet

Illinois Tool Works Inc. v. Rust-Oleum Corporation, 2018 WL 5810327, No. H-17-2084 (S.D. Tex. Jun. 21, 2018)  ITW’s Rain-X and Rust-Oleum’s RainBrella water repellant product compete in the market for use on vehicle windshields. Rust-Oleum advertised that RainBrella lasted twice … Continue reading →

Posted in Uncategorized | Tagged , , , , | Leave a comment