Author Archives: rtushnet

“most experienced” is puffery, but misrepresenting degree of responsibility for projects could be false

Posted on January 2, 2020 by rtushnet

Cypress Advisors, Inc. v. Davis, 2019 WL 7290948, No. 17-cv-01219-MSK-KLM (D. Colo. Aug. 28, 2019) Cypress provides financial advice to clients in the franchise restaurant industry. Defendant Kent Davis used to work there, but he left and started a competing … Continue reading →

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“diet” isn’t misleading for soda even if surveys say it is

Posted on January 1, 2020 by rtushnet

Becerra v. Dr Pepper/Seven Up, Inc., 2019 WL 7287554, No. 18-16721 (9th Cir. Dec. 30, 2019) Becerra alleged that Dr Pepper violated the usual California consumer-fraud laws by branding Diet Dr Pepper using the word “diet.” She cited dictionary definitions … Continue reading →

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Competitor’s Google review accusing P of “scam” was nondefamatory opinion

Posted on January 1, 2020 by rtushnet

Creditors Relief LLC v. United Debt Settlement LLC, 2019 WL 7288978, No. 17-7474 (D.N.J. Dec. 30, 2019) Plaintiff CR is a New Jersey-based debt settlement company that has allegedly “received significant publicity and an A+ rating from the Better Business … Continue reading →

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Amicus brief in 4th Circuit Lanham Act case on the meaning of literal falsity

Posted on December 31, 2019 by rtushnet

Brian Wolfman filed this amicus, which I drafted, on behalf of a number of Lanham Act professors. It involves a false advertising case with a number of moving parts; the amicus addresses only the court’s opportunity to correct the mistaken … Continue reading →

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3d Circuit gets descriptiveness right: it’s a matter of both the term and the goods/services

Posted on December 31, 2019 by rtushnet

Engage Healthcare Communications, L.L.C. v. Intellisphere, L.L.C., — Fed.Appx. —-, 2019 WL 6170825, No. 19-1017 (3d Cir. Nov. 20, 2019) Panels in the Second and Ninth Circuits, which really ought to know better, have occasionally reasoned that a term is … Continue reading →

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e-cigarette sellers must substantiate greater population-level safety to make “safer” claims

Posted on December 30, 2019 by rtushnet

Nicopure Labs, LLC v. Food & Drug Admin., No. 17-5196 (D.C. Cir. Dec. 10, 2019) In the Tobacco Control Act, Congress gave the FDA additional authority to regulate tobacco because previous measures “failed adequately to curb tobacco use by adolescents.” … Continue reading →

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lack of safety/higher failure rates plausibly meant products weren’t “compatible”

Posted on December 30, 2019 by rtushnet

Straumann USA, LLC v. TruAbutment Inc., No. 8:19-cv-00878-JLS-DFM, 2019 WL 6887173 (C.D. Cal. Oct. 1, 2019) The parties compete in the market for dental implants, which are medical devices surgically implanted into the patient’s jaw bone to replace natural teeth … Continue reading →

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calling business duration into question could actionably disparage its honesty

Posted on December 27, 2019 by rtushnet

Giannone v. Giannone, 2019 WL 6910151, No. 16-cv-911 (E.D. Pa. Dec. 18, 2019) “A lamentable father-son conflict over a family plumbing business provides the backdrop for this Lanham Act case.” Joseph Giannone, Senior, failed to get summary judgment on his … Continue reading →

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false claims about duration of business could be actionable

Posted on December 27, 2019 by rtushnet

SPS Technologies, LLC v. Briles Aerospace, Inc., 2019 WL 6841992, No. CV 18-9536-MWF (ASx) (C.D. Cal. Oct. 30, 2019) The parties compete in the market for high-strength aerospace fasteners. SPS, using information that is allegedly confidential/proprietary to it, makes the … Continue reading →

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you can’t plead false advertising to get around Dastar

Posted on December 27, 2019 by rtushnet

Focal Point Films, LLC v. Sandhu, 2019 WL 7020209, No. 19-cv-02898-JCS (N.D. Cal. Dec. 20, 2019) (magistrate, by consent) Focal Point/Gibel sought a declaratory judgment that Gibel was the sole author of a documentary film called Sign My Name to … Continue reading →

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