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Monthly Archives: December 2019
Amicus brief in 4th Circuit Lanham Act case on the meaning of literal falsity
Brian Wolfman filed this amicus, which I drafted, on behalf of a number of Lanham Act professors. It involves a false advertising case with a number of moving parts; the amicus addresses only the court’s opportunity to correct the mistaken … Continue reading
3d Circuit gets descriptiveness right: it’s a matter of both the term and the goods/services
Engage Healthcare Communications, L.L.C. v. Intellisphere, L.L.C., — Fed.Appx. —-, 2019 WL 6170825, No. 19-1017 (3d Cir. Nov. 20, 2019) Panels in the Second and Ninth Circuits, which really ought to know better, have occasionally reasoned that a term is … Continue reading
e-cigarette sellers must substantiate greater population-level safety to make “safer” claims
Nicopure Labs, LLC v. Food & Drug Admin., No. 17-5196 (D.C. Cir. Dec. 10, 2019) In the Tobacco Control Act, Congress gave the FDA additional authority to regulate tobacco because previous measures “failed adequately to curb tobacco use by adolescents.” … Continue reading
lack of safety/higher failure rates plausibly meant products weren’t “compatible”
Straumann USA, LLC v. TruAbutment Inc., No. 8:19-cv-00878-JLS-DFM, 2019 WL 6887173 (C.D. Cal. Oct. 1, 2019) The parties compete in the market for dental implants, which are medical devices surgically implanted into the patient’s jaw bone to replace natural teeth … Continue reading
calling business duration into question could actionably disparage its honesty
Giannone v. Giannone, 2019 WL 6910151, No. 16-cv-911 (E.D. Pa. Dec. 18, 2019) “A lamentable father-son conflict over a family plumbing business provides the backdrop for this Lanham Act case.” Joseph Giannone, Senior, failed to get summary judgment on his … Continue reading
false claims about duration of business could be actionable
SPS Technologies, LLC v. Briles Aerospace, Inc., 2019 WL 6841992, No. CV 18-9536-MWF (ASx) (C.D. Cal. Oct. 30, 2019) The parties compete in the market for high-strength aerospace fasteners. SPS, using information that is allegedly confidential/proprietary to it, makes the … Continue reading
you can’t plead false advertising to get around Dastar
Focal Point Films, LLC v. Sandhu, 2019 WL 7020209, No. 19-cv-02898-JCS (N.D. Cal. Dec. 20, 2019) (magistrate, by consent) Focal Point/Gibel sought a declaratory judgment that Gibel was the sole author of a documentary film called Sign My Name to … Continue reading
statutory Lanham Act standing exists when advertiser is advertising but not yet selling
CareDx, Inc. v. Natera, Inc., 2019 WL 7037799, No. 19-662-CFC-CJB (D. Del. Dec. 20, 2019) (magistrate) A nicely reasoned opinion about impending competition as sufficient to find likely harm from false advertising. CareDx makes AlloSure, a patented kidney transplant surveillance … Continue reading
don’t bring a chef to a food class action
Marotto v. Kellogg Co., No. 18 Civ. 3545 (AKH), 2019 WL 6798290, — F.Supp.3d —- (S.D.N.Y. Dec. 5, 2019) Here, the plaintiff’s status as a highly trained chef makes his class claims against Pringles dubious, but the class certification ultimately … Continue reading
Rebecca Tushnet 