Monthly Archives: October 2021

if it’s on the label, courts can presume consumers saw it

Posted on October 12, 2021 by rtushnet

Bailey v. Rite Aid Corp., 2021 WL 4469638, No. 4:18-cv-06926 YGR (N.D. Cal. May 26, 2021) Rite Aid moved to reconsider a previous ruling denying a motion to dismiss Bailey’s claim against Rite Aid’s marketing of its over-the-counter acetaminophen gelcaps … Continue reading →

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defendant moots claim by ending activity in a way that would require gov’t consent to restart

Posted on October 12, 2021 by rtushnet

Snarr v. HRB Tax Gp., Inc., 2021 WL 4499416, No. 19-cv-03610-SK (N.D. Cal. Aug. 24, 2021) Snarr alleged that HRB violated the usual California statutes by creating a “bait and switch” program to lure customers into paying for defendants’ services … Continue reading →

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challenging defendant’s clinical proof claim is falsity, not lack of substantiation

Posted on October 12, 2021 by rtushnet

Woodard v. Labrada, 2021 WL 4499184, No. EDCV 16-189 JGB (SPx) (C.D. Cal. Aug. 31, 2021) Woodard brought the usual California claims and some others, including NY claims, against Labrada for its weight loss products. Some tidbits: Labrada argues that … Continue reading →

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counting chickens: should disgorgement be harder for false advertising than for TM?

Posted on October 11, 2021 by rtushnet

Certified Neutraceuticals Inc. v. Clorox Co., 2021 WL 4460806, No. 18-cv-0744 W (KSC) (S.D. Cal. Sept. 29, 2021) The Clorox defendants sell dietary supplements using the raw materials provided by Certified’s competitor, Avicenna. Certified alleged Lanham Act false advertising based … Continue reading →

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Juxtaposition doesn’t necessarily mean one claim bleeds into another

Posted on October 11, 2021 by rtushnet

Engram v. GSK Consumer Healthcare Holdings (US) Inc., 2021 WL 4502439, No. 19-CV-2886(EK)(PK) (E.D.N.Y. Sept. 30, 2021) GSK sells “2 in 1 Lipcare” Chapstick: it provides moisturization and sun protection … but the former lasts longer than the latter. Engram … Continue reading →

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disparagement campaign in niche jewelry market could violate Lanham Act

Posted on October 11, 2021 by rtushnet

Roberto Coin, Inc. v. Goldstein, No. 18-CV-4045(EK)(ST), 2021 WL 4502470 (E.D.N.Y. Sept. 30, 2021) Defendants Goldstein and his company Kings Stone supplied plaintiff RCI with a gemstone they called “black jade.” “After RCI stopped sourcing black jade from Kings Stone … Continue reading →

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Mexican origin claims revitalized by survey

Posted on October 11, 2021 by rtushnet

Govea v. Gruma Corp., 2021 WL 4518457, No. CV 20-8585-MWF (JCx) (C.D. Cal. Aug. 18, 2021) Previous discussion. The amended complaint fares better: the tortilla packages at issue plausibly misrepresented Mexican origin. Plaintiffs added allegations that “[u]n pedacito de México” … Continue reading →

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Disney’s Toy Story 4 daredevil not legally risky

Posted on October 8, 2021 by rtushnet

K & K Prods., Inc. v. Walt Disney Studios Motion Pictures, No. 2:20-CV-1753 JCM (NJK) (D. Nev. Sept. 23, 2021) Evel Knievel was a famous motorcycle daredevil with an “iconic wardrobe: a white jumpsuit embellished only by star-spangled red, white, … Continue reading →

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non-toxic plausibly means nonharmful, but harmfulness still needs adequate pleading

Posted on October 8, 2021 by rtushnet

Rivera v. S.C. Johnson & Son, Inc., 2021 WL 4392300, No. 20-CV-3588 (RA) (S.D.N.Y. Sept. 24, 2021) Plaintiffs alleged that S.C. Johnson’s labeling of its Windex cleaning products as “Non-Toxic” was misleading in violation of NY’s GBL because those products … Continue reading →

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NY can still seek disgorgement even if FTC can’t

Posted on October 8, 2021 by rtushnet

Federal Trade Comm’n v. Vyera Pharms., LLC, 2021 WL 4392481, No. 20cv00706 (DLC) (S.D.N.Y. Sept. 24, 2021) Featuring Martin Shkreli as a defendant! The FTC, with NY and a number of other states, sued Vyera for violating the antitrust laws … Continue reading →

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