Monthly Archives: August 2021

TM choice of law: P’s primary place of business determines which state’s law applies

Lontex Corp. v. Nike, Inc., 2021 WL 3170600, No. 18-5623 (E.D. Pa. Jul. 27, 2021) A rare choice of law opinion involving competitors. This is a trademark infringement claim but Lontex asserted claims under various state unfair trade practices law. … Continue reading

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“Natural” trade name can mislead consumers, court holds

Early v. Henry Thayer Co., 2021 WL 3089025, No. 4:20-CV-1678 RLW (E.D. Mo. Jul. 22, 2021) Thayer markets THAYERS Natural Remedies, which are sold in drug stores, grocery stores, and other retail stores nationwide. Early sued Thayer for violations of … Continue reading

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selling infant & child pain reliever in different boxes (& prices) wasn’t plausibly misleading

Eldmann v. Walgreen Co. 2021 WL 764121, No. 5:20-cv-04805-EJD (N.D. Cal. Feb. 26, 2021) Eldmann argued that Walgreens falsely marketed its Infants’ Pain & Fever product in contrast to its Children’s Pain & Fever Acetaminophen product. Infant products used to … Continue reading

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DMCA gives Walmart only a gleam of light in sculpture infringement case

Russell v. Walmart Inc., No. CV 19-5495-MWF (JCx), 2020 WL 9073046 (C.D. Cal. Oct. 16, 2020) Russell owns registered copyrights in certain photos of sculptures that appeared on Walmart’s marketplace. Previously, the court found that all of Walmart’s affirmative defenses … Continue reading

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ThermoLife wins appeal of Lexmark-based dismissal of claims

Thermolife Int’l, LLC v. Compound Solutions, Inc., No. 20-16138, — Fed.Appx. —-, 2021 WL 963782 (9th Cir. Mar. 15, 2021) ThermoLife got a significant success in this appeal of the dismissal of its false patent marking, false advertising, and unfair … Continue reading

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“tested and certified” can be false if in fact products were merely “certified” by non-tester

Wedi Corp. v. Wright, 2021 WL 1054463, No. 20-35242 (9th Cir. Mar. 3, 2021) Wedi alleged that three statements were literally false in violation of the Lanham Act and the Washington Consumer Protection Act: All Hydro-Blok Products Are IAPMO Tested … Continue reading

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Vanilla claim comes closer than most b/c of label image, still falls short

Budhani v. Monster Energy Co., 2021 WL 1104988, No. 20-cv-1409 (LJL) (S.D.N.Y. Mar. 22, 2021) Monster “sells espresso energy drinks blended with European milk and purporting to be flavored with vanilla under their Monster brand.” E.g., the Espresso Monster Vanilla … Continue reading

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“free-run” chicken was plausibly misleading, but “wild-caught fish” claims needed more

Sultanis v. Champion Petfoods USA Inc., 2021 WL 3373934, No. 21-cv-00162-EMC (N.D. Cal. Aug. 3, 2021) Sultanis alleged that petfood sold as being made with “free-run” poultry and “wild-caught” fish was falsely advertised. (Champion’s website also allegedly described its chicken … Continue reading

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pharmaceutical equivalence isn’t therapeutic equivalence/FDA approval

Concordia Pharmaceuticals Inc., S.À.R.L. v. Winder Laboratories, LLC, 2021 WL 3573118, No. 16-cv-00004-RWS (N.D. Ga. Feb. 17, 2021) Concordia makes DONNATAL, a combination of phenobarbital and belladonna alkaloids (PBA) used to treat irritable bowel syndrome (IBS) and acute enterocolitis. Winder … Continue reading

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Advocacy organization lacked standing to litigate over foie gras claims

Voters for Animal Rights v. D’artagnan, Inc., 2021 WL 1138017, No. 19-CV-6158 (MKB) (E.D.N.Y. Mar. 25, 2021) Plaintiff, a nonprofit dedicated to advancing the interests of citizens who support animal protection, alleged that defendants violated sections 349 and 350 of … Continue reading

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