Monthly Archives: August 2021

Renting legitimate goods isn’t actionable, at least with disclaimer

Posted on August 31, 2021 by rtushnet

Proactive Environmental Products Int’l, LLC v. Pine Environmental Servs., LLC, No. 8:21-cv-250-CEH-CPT, 2021 WL 3025481 (M.D. Fla. May 20, 2021) (R&R) Proactive alleged that Pine infringed registered trademarks associated with Proactive’s groundwater sampling pumps and their components and engaged in … Continue reading →

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innovative/”new technology” claims foiled by Dastar

Posted on August 31, 2021 by rtushnet

Powerbahn, LLC v. Foundation Fitness LLC, 2021 WL 2689852, No. 1:19-cv-1678-AT (N.D. Ga. Ma.r 26, 2021) POWERbahn alleged that defendant Wahoo made false representations in its ads by failing to disclose POWERbahn and its CEO as the source of the … Continue reading →

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Robinhood’s newsletter isn’t commercial advertising

Posted on August 31, 2021 by rtushnet

Jackson v. Robinhood Markets, Inc., 2021 WL 2435307, No. 21-cv-02304-LB (N.D. Cal. Jun. 15, 2021) Jackson, known professionally as Ice Cube, sued after Robinhood used his image and a paraphrase of a line from his song “Check Yo Self” to … Continue reading →

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“Oregon” wine bottled in California might be confusing

Posted on August 31, 2021 by rtushnet

Kay v. Copper Cane, LLC, — F.Supp.3d —-, 2021 WL 2953241, No. 20-cv-04068-RS (N.D. Cal. Jul. 14, 2021) Plaintiffs challenged the labels on a line of CC’s pinot noirs, alleging deception about the wine’s appellation of origin in Oregon generally … Continue reading →

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Rejected compliance offer to AG leads to fee shift after defense victory

Posted on August 30, 2021 by rtushnet

State ex rel. Rosenblum v. Living Essentials, LLC, 313 Or.App. 176, A163980 — P.3d —-, 2021 WL 2946172 (Jul. 14, 2021) The state alleged that LE falsely advertised its 5-hour Energy drinks, misrepresenting (1) the effects of the noncaffeine ingredients … Continue reading →

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Pom Wonderful applies to pharmaceuticals, but “implied FDA approval” claim still fails

Posted on August 30, 2021 by rtushnet

Belcher Pharms., LLC v. Hospira, Inc., 1 F.4th 1374 (11th Cir. 2021) Belcher alleged that the labels for two of Hospira’s drugs falsely implied that the products and their uses were FDA-approved. The district court rejected that claim on the … Continue reading →

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FTC fails to show lack of substantiation because court reads ASTM standards as nonrestrictive

Posted on August 30, 2021 by rtushnet

Federal Trade Comm’n v. Innovative Designs, Inc., 2021 WL 3086188, — Fed.Appx. —-, No. 20-3379 (3d Cir. Jul. 22, 2021) Another FTC loss, this time for failing to prove that IDI’s claims about its Insultext House Wrap were false or … Continue reading →

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Duelling results in Mexican origin cases

Posted on August 30, 2021 by rtushnet

Rodriguez v. Olé Mexican Foods Inc., 2021 WL 1731604, No. EDCV 20-2324 JGB (SPx) (C.D. Cal. Apr. 22, 2021) Rodriguez alleged that Olé’s La Banderita tortillas falsely advertised Mexican origin based on  a Mexican flag front and center on the … Continue reading →

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Lexmark allows direct and contributory false advertising claims against certifier

Posted on August 27, 2021 by rtushnet

U.S. Structural Plywood Integrity Coalition v. PFS Corp., No. 19-62225-CIV-ALTMAN, 2021 WL 810279 (S.D. Fla. Mar. 3, 2021) Sometimes I worry that judicial writing is tending too much towards the flip as it moves away from prolixity, but this is … Continue reading →

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class action certified with adequate price premium model for “nutritious” claims

Posted on August 27, 2021 by rtushnet

McMorrow v. Mondelēz International, Inc., 2021 WL 859137, No. 17-cv-2327-BAS-JLB (S.D. Cal. Mar. 8, 2021) Consumers in California and New York who purchased belVita breakfast biscuits, brought a putative class action alleging that MDLZ labeled the breakfast biscuits as “nutritious,” … Continue reading →

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