Author Archives: rtushnet

court rejects survey indicating consumers think “white chips” have white chocolate

Posted on July 21, 2020 by rtushnet

Cheslow v. Ghirardelli Chocolate Co., No. 19-cv-07467-PJH, — F.Supp.3d —-, 2020 WL 4039365 (N.D. Cal. Jul. 17, 2020)  Plaintiffs brought the usual California claims against Ghirardelli’s “Premium Baking Chips Classic White Chips.” They sought to bolster the plausibility of the … Continue reading →

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does unclean hands require actual deception? answers may differ for TM/false advertising

Posted on July 21, 2020 by rtushnet

Certified Nutraceuticals, Inc. v. Avicenna Nutraceutical, LLC, No. 18-56631, — Fed.Appx. —-, 2020 WL 4037411 (9th Cir. Jul. 17, 2020)  This memorandum opinion comes with a partial dissent calling out the majority’s differential treatment of §43(a)(1)(A) and (B) claims for … Continue reading →

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

Posted on July 6, 2020 by rtushnet

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

Posted on July 6, 2020 by rtushnet

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

Posted on July 6, 2020 by rtushnet

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

Posted on June 30, 2020 by rtushnet

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

Posted on June 29, 2020 by rtushnet

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

Posted on June 29, 2020 by rtushnet

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)

Posted on June 25, 2020 by rtushnet

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

Posted on June 19, 2020 by rtushnet

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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