Monthly Archives: September 2021

getting friends to leave fake reviews isn’t enough for direct liability

Posted on September 10, 2021 by rtushnet

BHRS Gp., LLC v. Brio Water Technol. Inc., 2020 WL 9422352, No. 2:20-CV-07652-JWH-JCx (C.D. Cal. Dec. 14, 2020) BHRS, which makes water cooler products, sued its competitor Brio for state and federal false advertising and trade libel.  BHRS alleged that … Continue reading →

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IIC decision also says some things about false advertising: materiality may not be presumed from literal falsity

Posted on September 9, 2021 by rtushnet

Select Comfort Corp. v. Baxter; 996 F.3d 925 (8th Cir. 2021) You probably know that the court of appeals sent this case back for retrial on an initial interest confusion theory. I won’t say much about that, though I do … Continue reading →

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Journalism about investment isn’t commercial speech

Posted on September 9, 2021 by rtushnet

Crash Proof Retirement, LLC v. Price, 2021 WL 1387501, No. 2:20-cv-05906-JDW (E.D. Pa. Apr. 13, 2021) Competing in the marketplace of ideas can ground a defamation claim, but not a false advertising claim. Crash Proof, which offers retirement planning counseling, … Continue reading →

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Microsoft dodges some false advertising claims based on its security offerings

Posted on September 9, 2021 by rtushnet

Tocmail Inc. v. Microsoft Corp., 2020 WL 9210739, No. 20-60416-CIV-SMITH (S.D. Fla. Nov. 6, 2020) From the deepest depths of backlog: Tocmail alleged that Microsoft’s deceptive promotions of its cyber-security service, Safe Links, constituted false advertising and contributory false advertising. … Continue reading →

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competitor has state, federal standing to challenge nondisparaging false ads

Posted on September 9, 2021 by rtushnet

Jerome’s Furniture Warehouse v. Ashley Furniture Industries, Inc., 2021 WL 1541649, No. 20CV1765-GPC(BGS) (S.D. Cal. Apr. 20, 2021) Jerome’s alleged false advertising under state and federal law based on Ashley’s alleged false advertising  “intended to deceive customers into falsely believing … Continue reading →

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Apple’s “buy” button that doesn’t result in ownership may mislead consumers

Posted on September 8, 2021 by rtushnet

Andino v. Apple, Inc., 2021 WL 1549667, No. 2:20-cv-01628-JAM-AC (E.D. Cal. Apr. 20, 2021) iTunes allows consumers to “Rent” or “Buy” movies, television shows, music and other content. Renting is less expensive; buying leads the content to appear in a … Continue reading →

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Coffee lawsuits brewing

Posted on September 8, 2021 by rtushnet

Two cases, suggesting a newly discovered litigation vein. Ashton v. J.M. Smucker Co., No. EDCV 20-992 JGB (SHKx), 2020 WL 8575140 (C.D. Cal. Dec. 16, 2020) Plaintiffs alleged that representations on the front of Folgers ground coffee cans, including “MAKES … Continue reading →

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Informational functionality is a thing now

Posted on September 8, 2021 by rtushnet

Sulzer Mixpac AG v. A&N Trading Co., No. 19-2951 (2d Cir. Feb. 18, 2021) The parties compete in the U.S. market for mixing tips used by dentists to create impressions of teeth for dental procedures, such as crowns. Reversing the … Continue reading →

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organic protein is generic, but trade dress comes to the rescue

Posted on September 8, 2021 by rtushnet

Orgain, Inc. v. Northern Innovations Holding Corp., 2021 WL 1321653, No. 8:18-cv-01253-JLS-ADS (C.D. Cal. Mar. 22, 2021) The parties compete in the market for nutritional supplements. Orgain alleged that defendants infringed its trade dress in selling a competing plant-based nutritional … Continue reading →

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Uber’s expansion into ads hits a TM hurdle

Posted on September 7, 2021 by rtushnet

Uber Inc. v. Uber Technol., Inc., No. 20-cv-2320 (PKC) (S.D.N.Y. Feb. 24, 2021) Uber Inc. has offered design and marketing services under the name “Uber” since 1999. Uber Technologies, the one you know about, was incorporated in 2010. As it … Continue reading →

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