Author Archives: rtushnet

seller’s private definition of “Made in USA” fails; disgorgement appropriate

Posted on September 9, 2020 by rtushnet

Newborn Bros. Co. v. Albion Engineering Co., 2020 WL 5015571, No. 12-2999 (NLH/KMW) After a bench trial, the court found Albion liable for falsely advertising its caulk dispensing guns as “Made in the USA” (a bit ironic given the name, … Continue reading →

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Dastar no bar to claims that using images of P’s product is deceptive where D’s product differs

Posted on September 9, 2020 by rtushnet

Primesource Building Products, Inc. v. Lee Gp. Int’l, Inc., No. 3:19-CV-02878-X, 2020 WL 5038176 (N.D. Tex. Aug. 25, 2020) PrimeSource alleged that Lee Group wrongly used images and product descriptions of PrimeSource’s concrete curing blanket to sell its own competing … Continue reading →

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social media posts using models’ images could be false advertising etc.

Posted on September 9, 2020 by rtushnet

Two cases in this burgeoning genre, with different results on conversion claims but otherwise similarly highly favorable for the plaintiffs, including on statute of limitations/single publication rulings. Moreland v. Beso Lounge & Restaurant LLC, 2020 WL 5302312, No. 19-cv-00958 (VLB) … Continue reading →

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I can’t believe it’s not (vegan) butter: First Amendment invalidates standard of identity for butter as applied to vegan product

Posted on September 8, 2020 by rtushnet

Miyoko’s Kitchen v. Ross, No. 20-cv-00893-RS (N.D. Cal. Aug. 21, 2020) Eric Goldman’s far more anti-regulatory take is here. The California Department of Food and Agriculture told Miyoko’s not to call its “vegan butter” product “butter” (it challenged certain other … Continue reading →

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T-shirts as noncommercial speech (and an issue-spotter fact pattern)

Posted on September 8, 2020 by rtushnet

Cornette v. Graver, 2020 WL 4059589, No. 19-cv-219 (W.D. Pa. Jul. 20, 2020) Cornette is a professional wrestling commentator and “personality” who sued defendants for infringing his trademark rights and right of publicity by selling disparaging t-shirts bearing his name … Continue reading →

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inhaler marketing is partly deceptive; P not required to resurvey revised material

Posted on September 8, 2020 by rtushnet

GlaxoSmithKline LLC v. Boehringer Ingelheim Pharms., Inc., 2020 WL 5258317, No. 19-5321 (E.D. Pa. Sept. 3, 2020) GSK partially succeeded and partially failed to preliminarily enjoin some of BI’s marketing in this case involving claims about different inhalers. Of broader … Continue reading →

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another advertiser’s Google click fraud suit is revived

Posted on September 8, 2020 by rtushnet

Singh v. Google LLC, 2020 WL 5202081, — Fed.Appx. —-, 2020 WL 5202081 (9th Cir. Sept. 1, 2020) The court of appeals reverses the dismissal of Singh’s California FAL/UCL claims against Google for allegedly charging for fraudulent clicks despite its … Continue reading →

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Tiffany’s blues: Costco gets a trial on sales of “Tiffany” rings with Tiffany setting

Posted on August 21, 2020 by rtushnet

Tiffany & Co. v. Costco Wholesale Corp., Nos. 17-2798-cv, 19-338, 19-404, 2020 WL 4743020, — F.3d – (2d Cir. Aug. 17, 2020) The district court found that Costco’s sales of otherwise unbranded diamond engagement rings with the solitaire setting known … Continue reading →

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Harm story fails where deceived doctors’ choices wouldn’t have mattered

Posted on August 21, 2020 by rtushnet

Quidel Corp. v. Siemens Medical Solutions USA, Inc., No. 16-cv-3059-BAS-AGS, 2020 WL 4747724 (S.D. Cal. Aug. 17, 2020) Previously, the court ruled that alleged misrepresentations, even if false, didn’t affect testing labs’ choice of which of the parties’ tests to … Continue reading →

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Second Circuit finds conflict preemption of publicity rts for unauthorized music sample

Posted on August 21, 2020 by rtushnet

Jackson v. Roberts, No. 19-480 (2d Cir. Aug. 19, 2020) Judge Leval, kindly citing my work as well as that of other scholars, finds a right of publicity claim against a remix album preempted by the Copyright Act/Supremacy Clause through … Continue reading →

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