Author Archives: rtushnet

calling pork “prime” doesn’t misleadingly imply USDA grading

Davis v. Fresh Market, Inc., 2020 WL 3489369, No. 19-CV-24245-PCH (S.D. Fla. Jun. 26, 2020)  Plaintiffs alleged that defendants violated Florida consumer protection law by misrepresenting, via the name, that their Chairman’s Reserve Prime Pork product had been graded prime … Continue reading

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flushable wipes injunctive relief class must go, damages class can stay

Kurtz v. Costco Wholesale Corp., — Fed.Appx. —-, 2020 WL 3480830, Nos. 17-1856-cv, 17-1858-cv (2d Cir. Jun. 26, 2020)  This is a flushable wipes case. The court of appeals decertifies an injunctive relief class under NY law, but allows a … Continue reading

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NY high court reiterates that “consumer-oriented” is broad, covers statements to thousands of gov’t employees

Plavin v. Group Health Inc., 35 N.Y.3d 1 (Mar. 24, 2020)  The Third Circuit certified to NY’s highest court whether a plaintiff “sufficiently alleged consumer-oriented conduct to assert claims under General Business Law §§ 349 and 350 for damages incurred … Continue reading

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Booking.com: validity continues to be disconnected from scope of rights

U.S. Patent & Trademark Office v. Booking.com B.V., No. 19–46 (Jun. 30, 2020) Kind of what I expected, though maybe a little worse in its disregard of scope issues. Ginsburg writes the majority (Sotomayor concurred and Breyer dissented).  “Generic.com” is … Continue reading

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Expert causation/falsity evidence is admissible in fake review case

Vitamins Online, Inc. v. Heartwise, Inc., 2020 WL 3452872, No. 2:13-cv-00982-DAK (D. Utah Jun. 24, 2020)  Some pre-bench trial motions here in this Lanham Act false advertising case based on alleged manipulation of Amazon’s customer review system and misrepresentation of … Continue reading

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9th Circuit shows some hostility to functionality for product design, gets federal fame right

Blumenthal Distributing, Inc. v. Herman Miller, Inc., Nos. 18-56471 & 18-56493 (9th Cir. Jun. 25, 2020)  HM and Blumenthal/OSP engaged in litigation over “knockoffs” of HM’s Eames chairs and Aeron chairs. A jury found that HM’s registered and unregistered claimed … Continue reading

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UL’s interpretation of its own standards is opinion (but not all standards application would be)

Warren Technology, Inc. v. UL LLC, — F.3d —-, 2020 WL 3406585, No. 18-14976 (11th Cir. Jun. 22, 2020) This decision comes out the right way—a manufacturer’s disagreement with UL’s interpretation of its own standards doesn’t make UL’s interpretation false—but … Continue reading

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reconsidering, court rules that FDUTPA covers more than Lanham Act “advertising,” reinstates only state claims

Westgate Resorts, Ltd. v. Reed Hein & Assoc., LLC, 2020 WL 3265972, No. 6:18-cv-1088-Orl-31DCI (M.D. Fla. Apr. 27, 2020)  Previously, the court dismissed Lanham Act false advertising and coordinate state law claims against timeshare exit purveyors. Here, the court reverses … Continue reading

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restitution unavailable in fed ct if damages are adequate, even for Cal. state law claims

Sonner v. Premier Nutrition Corporation, — F.3d —-, 2020 WL 3263043, No. 18-15890 (9th Cir. Jun. 17, 2020)  The court explains:  On the brink of trial after more than four years of litigation [over allegedly false advertising of “Joint Juice”], … Continue reading

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Amicus in Lettuce Turnip the Beet

With the much-valued assistance of Venkat Balasubramani, Mark McKenna & I have put together a law professors’ brief in the LTTB case, which raises important issues about the scope of a trademark registration and aesthetic functionality.  Read it here. from … Continue reading

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