Monthly Archives: December 2020

Nominative fair use in the Seventh Circuit: a practical tool

Posted on December 31, 2020 by rtushnet

Data Mgmt. Ass’n Int’l v. Enterprise Warehousing Solutions, Inc., 2020 WL 7698368, No. 20 C 04711 (N.D. Ill Dec. 28, 2020) Without resolving burden of proof issues, the court uses nominative fair use to quickly resolve a case where fair … Continue reading →

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product changes as false advertising: TM may serve as express warranty of formulation & quality

Posted on December 30, 2020 by rtushnet

Starr v. VSL Pharmaceuticals, Inc., No. TDC-19-2173, 2020 WL 7694480 (D. Md. Dec. 28, 2020) This putative class action is related to the longstanding trademark/false advertising litigation between the VSL parties and Claudio De Simone parties, and probably qualifies as … Continue reading →

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business can assert California consumer protection claims against platform

Posted on December 30, 2020 by rtushnet

Gaby’s Bags, LLC v. Mercari, Inc., No. C 20-00734 WHA, 2020 WL 7664455 (N.D. Cal. Dec. 25, 2020) After the court dismissed plaintiff’s Lanham Act false advertising claims against a platform because the plaintiff was a customer and not a … Continue reading →

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no Lanham Act claims, including false advertising, allowed over cannabis

Posted on December 30, 2020 by rtushnet

Shulman v. Kaplan, 2020 WL 7094063, No. 2:19-CV-05413-AB (FFMx) (C.D. Cal. Oct. 29, 2020) The parties compete in the cannabis market, and some defendants formerly worked with Shulman, but that relationship broke down. Shulman sued, alleging four federal claims and … Continue reading →

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Test yourself: would you have approved this “covid-free” claim?

Posted on December 29, 2020 by rtushnet

 From the NYT this weekend (h/t Zachary Schrag): “It’s time to put COVID on hold … and set out for the ultimate escape to the world’s only 6-star hotel, Quintessence Hotel. The sixth star is for our (and Anguilla’s) diligence … Continue reading →

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Another pandemic education case: false advertising fails, contract claim survives

Posted on December 22, 2020 by rtushnet

Bergeron v. Rochester Inst. of Technology, No. 20-CV-6283 (CJS), 2020 WL 7486682 (W.D.N.Y. Dec. 18, 2020) Different district, same result as this case involving Rensselaer Polytechnic. Contract/unjust enrichment claims survive based on allegations that RIT promised in-person learning, but conversion … Continue reading →

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reasonable consumer wouldn’t expect advertised in-person classes in pandemic (but contract claims survive)

Posted on December 18, 2020 by rtushnet

Ford v. Rensselaer Polytechnic Institute, No. 20-CV-470, 2020 WL 7389155 (N.D.N.Y. Dec. 16, 2020) This is a putative class action against RPI for breach of contract, false advertising, and related claims based on the mid-semester pandemic shutdown of early 2020. … Continue reading →

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fake “independent” review sites support claims against underlying advertiser & website operator

Posted on December 17, 2020 by rtushnet

Beyond 79, LLC v. Express Gold Cash, Inc., 2020 WL 7352545, No. 19-cv-06181 EAW (W.D.N.Y. Dec. 15, 2020) Previous discussion. Beyond 79, which buys precious metal etc. online under names including SellYourGold.com, sued a bunch of defendants for false advertising … Continue reading →

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What Dastar took, does 1202 give back?

Posted on December 14, 2020 by rtushnet

Another older case found in my year-end roundup. Pilla v. Gilat, 2020 WL 1309086, No. 19-CV-2255 (KMK) (S.D.N.Y. Mar. 19, 2020) Pilla provides “professional architectural services to various construction projects.” Defendants own a “luxury construction project” at 324–326 West 108th … Continue reading →

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copyright in model codes after Georgia v. PublicResource.Org

Posted on December 14, 2020 by rtushnet

Older case, but worth working through! International Code Council, Inc. v. UpCodes, Inc., 2020 WL 2750636 (S.D.N.Y. May 26, 2020) ICC claimed that defendants infringed its copyrights in forty model building codes (I-Codes) by posting them and derivative works on … Continue reading →

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