Author Archives: rtushnet

Happy inauguration day to Redbubble in particular: 9th Cir. affirms functionality in Lettuce Turnip the Beet

LLTB LLC v. Redbubble, Inc., No. 19-16464 (9th Cir. Jan. 20, 2021) LTTB LLC sells t-shirts and other goods bearing its registered trademarks, the words and design, “LETTUCE TURNIP THE BEET.”  LTTB sued Redbubble for infringing by selling products containing … Continue reading

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Dastardly DoorDash fails to get restaurant complaint dismissed, including under UCL/FAL

Lona’s Lil Eats, LLC v. DoorDash, Inc., No. 20-cv-06703-TSH, 2021 WL 151978 (N.D. Cal. Jan. 18, 2021) (magistrate) This case addresses a topic that’s received broader media coverage than most advertising issues. The magistrate finds that Lona’s sufficiently alleged false … Continue reading

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WVa SCt immunizes religious schools and camps for false advertising about services

State ex rel. Morrisey v. Diocese of Wheeling-Charleston, 851 S.E.2d 755 (W.Va. 2020) In response to a certified question, the West Virginia Supreme Court, over a dissent, held that the AG could not sue the Diocese and a former bishop … Continue reading

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Rogers v. Grimaldi and the TMA

The legislative history of the TMA, just enacted into law, includes several paragraphs blessing Rogers v. Grimaldi and saying it’s what Congress understands the Lanham Act to mean. I’d be interested to know how that got in there, and I wonder … Continue reading

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American Merck and German Merck’s TM battle doesn’t involve covered “advertising injury”

EMD Millipore Corp. v. HDI-Gerling Am. Ins. Co., 2021 WL 66441, No. 20-cv-10244-ADB (D. Mass. Jan. 7, 2021) Is trademark infringement (or similar) “advertising injury” because a trademark is an advertising idea? I’ve always thought that’s the core of what … Continue reading

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literal falsity as Q of fact v. law and other important issues in a dueling ladder case

Wing Enters., Inc. v. Tricam Indus., Inc., No. 17-cv-1769 (ECT/ECW), 2021 WL 63108 (D. Minn. Jan. 7, 2021) After remand because the court of appeals concluded that a materiality survey was wrongly excluded, the court here tries again in this … Continue reading

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Nominative fair use in the Seventh Circuit: a practical tool

Data Mgmt. Ass’n Int’l v. Enterprise Warehousing Solutions, Inc., 2020 WL 7698368, No. 20 C 04711 (N.D. Ill Dec. 28, 2020) Without resolving burden of proof issues, the court uses nominative fair use to quickly resolve a case where fair … Continue reading

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product changes as false advertising: TM may serve as express warranty of formulation & quality

Starr v. VSL Pharmaceuticals, Inc., No. TDC-19-2173, 2020 WL 7694480 (D. Md. Dec. 28, 2020) This putative class action is related to the longstanding trademark/false advertising litigation between the VSL parties and Claudio De Simone parties, and probably qualifies as … Continue reading

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business can assert California consumer protection claims against platform

Gaby’s Bags, LLC v. Mercari, Inc., No. C 20-00734 WHA, 2020 WL 7664455 (N.D. Cal. Dec. 25, 2020) After the court dismissed plaintiff’s Lanham Act false advertising claims against a platform because the plaintiff was a customer and not a … Continue reading

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no Lanham Act claims, including false advertising, allowed over cannabis

Shulman v. Kaplan, 2020 WL 7094063, No. 2:19-CV-05413-AB (FFMx) (C.D. Cal. Oct. 29, 2020) The parties compete in the cannabis market, and some defendants formerly worked with Shulman, but that relationship broke down. Shulman sued, alleging four federal claims and … Continue reading

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