Monthly Archives: September 2021

Peloton’s innovation claims were puffery, but music ads were a problem

Posted on September 14, 2021 by rtushnet

Peloton Interactive, Inc. v. Icon Health & Fitness, Inc., 2021 WL 2188219, No. 20-662-RGA (D. Del. May 28, 2021) The parties “compete in the at-home fitness market and offer products that allow consumers to attend live and on-demand fitness classes … Continue reading →

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gold buyer’s “up to 90%” payment claims were plausibly misleading

Posted on September 14, 2021 by rtushnet

Express Gold Cash, Inc. v. Beyond 79, LLC, 2020 WL 9848431, No. 18-CV-00837 EAW (W.D.N.Y. Dec. 15, 2020) Previous opinion.  The parties compete in the market for buying gold from ordinary people. In 2010, the Today Show—a morning television show … Continue reading →

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student social media use of school colors/logo not plausibly confusing

Posted on September 14, 2021 by rtushnet

Arizona Board of Regents v. Doe, 2021 WL 3684116, No. CV-20-01638-PHX-DWL (D. Ariz. Aug. 18, 2021) Doe, a real asshole (“deeply unsympathetic,” to use the court’s terms), advertised “ASU Covid Parties” on a similarly-named Instagram account and spewed a lot … Continue reading →

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infant/child painkiller case dismissed as preempted

Posted on September 13, 2021 by rtushnet

Youngblood v. CVS Pharmacy, 2021 WL 3700256, No. 2:20-cv-06251-MCS-MRW (C.D. Cal. Aug. 17, 2021) Another infant/children acetaminophen consumer protection case. This one dismisses the claims as completely preempted by the FTCA. Plaintiffs argued that their claims are consistent with the … Continue reading →

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two Zillow false advertising cases, divergent outcomes

Posted on September 13, 2021 by rtushnet

REX – Real Estate Exchange Inc. v. Zillow Inc., No. C21-312 TSZ, 2021 WL 3930694 (W.D. Wash. Sept. 2, 2021) Rex sued Zillow and the National Association of Realtors for antitrust and false advertising violations. Surprisingly, the antitrust claims survive, … Continue reading →

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“tested” can misleadingly imply high performance on test

Posted on September 13, 2021 by rtushnet

Carder v. Graco Children’s Products, Inc., — F.Supp.3d —-, 2021 WL 3909953, No. 2:20-CV-00137-LMM (N.D. Ga. Aug. 31, 2021) Plaintiffs from fifteen states alleged that Graco made false and misleading representations about two models of children’s car seats, specifically marketing … Continue reading →

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Reading list: The Confusion Test in European Trade Mark Law

Posted on September 13, 2021 by rtushnet

Ilanah Fhima & Dev S. Gangjee, The Confusion Test in European Trade Mark Law (2019) A very helpful overview. From a US perspective, offers real insights into how a system of registration primacy differs from a system of use primacy. … Continue reading →

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tortious interference claim from false advertising survives, but why bother?

Posted on September 10, 2021 by rtushnet

Logistick, Inc. v. AB Airbags, Inc., — F.Supp.3d —-, 2021 WL 2433944, No. 3:21-cv-00151-BEN-MDD (S.D. Cal. Jun. 15, 2021) Logistick sells disposable load bars which are used to secure cargo freight during transport. AB allegedly began advertising for a similar … Continue reading →

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expert admissibility, literal falsity receive close review in drug disposal case

Posted on September 10, 2021 by rtushnet

In re C2R Global Manufacturing, Inc., No. 18-30182-beh, 2021 WL 1347193 (E.D. Wis. Bkrcy. Mar. 30, 2021) Previous denial of injunctive relief. There are a number of opinions in this case—the judge spent time on this rather unusual false advertising … Continue reading →

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slack fill and “healthy” claims unite in one case

Posted on September 10, 2021 by rtushnet

Stewart v. Kodiak Cakes, LLC, 2021 WL 1698695, No. 19-cv-2454-MMA (MSB) (S.D. Cal. Apr. 29, 2021) Plaintiffs alleged that Kodiak was liable for “(1) non-functional slack fill and (2) deceptive marketing practices” for its pancake and waffle mixes. Defendant misleadingly … Continue reading →

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