Author Archives: rtushnet

“100% Natural” might be deceptive as applied to food w/bioengineered ingredients

Posted on May 11, 2020 by rtushnet

Lee v. Conagra Brands, Inc., No. 17-2131 (1st Cir. May 7, 2020) Lee alleged that Wesson’s supposedly “100% Natural” vegetable oil contained GMOs, which she regarded as “quite unnatural,” in violation of Mass. Gen. Laws ch. 93A.  She also alleged … Continue reading →

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A few thoughts on the Booking.com argument

Posted on May 7, 2020 by rtushnet

The Justices were engaged and asking the right questions, despite everyone’s use of “trademark” as a verb to mean “register.” With a putatively generic term the equation is perhaps understandable since if it is unregistrable it will also be unprotectable … Continue reading →

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Forthcoming article: Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising

Posted on May 7, 2020 by rtushnet

Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising, Iowa Law Review, Forthcoming Abstract: Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition. Contradiction … Continue reading →

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circumventing insurance can violate consumer protection law

Posted on May 5, 2020 by rtushnet

Franks v Sykes, No. W2018-00654-SC-R11-CV, 2020 WL 2097544, — S.W.3d — (Tenn. May 1, 2020) I usually try to stick to advertising-related UDAP claims but this practice was just so astonishingly awful that I could not resist.  Plaintiffs were injured … Continue reading →

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Reading List: Greg Klass on false advertising law as private law

Posted on May 5, 2020 by rtushnet

Gregory Klass, FalseAdvertising Law and New Private Law, Forthcoming as: False Advertising Law, in Oxford Handbook of New Private Law (Andrew Gold et al. eds., Oxford Univ. Pr.)  One might reasonably wonder why a chapter on false advertising law appears … Continue reading →

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9th Circuit panel divides on evidence of injury in false advertising case

Posted on May 4, 2020 by rtushnet

VBS Distribution, Inc. v. Nutrivita Laboratories, Inc., — Fed.Appx. —-, 2020 WL 2086557, No. 18-56317 (9th Cir. Apr. 30, 2020) The parties compete in the market for nutritional supplements and television programs. VBS sued for Lanham Act and California state … Continue reading →

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TM may look like a certification mark, but that doesn’t harm a competing trade organization

Posted on May 1, 2020 by rtushnet

North American Olive Oil Ass’n v. D’avolio Inc., 16-CV-6986 (SJF) (ARL), 2020 WL 2079421 (E.D.N.Y. Apr. 30, 2020) NAOOA, a trade association for olive oil marketers/sellers/etc., sued a number of defendants for false advertising about olive oil sold by others. … Continue reading →

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Seventh Circuit mostly ends corn syrup war: Coors can’t bar AB from touting “ingredients”

Posted on May 1, 2020 by rtushnet

Molson Coors Beverage Co. USA v. Anheuser-Busch Cos., Nos. 19-2200, 19-2713, 19-2782, 19-3097 & 19-3116 (7th Cir. May 1, 2020) I think of the Second Circuit as usually the most formalist Lanham Act court (you have to say the magic … Continue reading →

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Reasonable restaurant consumers wouldn’t think “krab mix” had real crab in it

Posted on April 29, 2020 by rtushnet

Kang v. P.F. Chang’s China Bistro, Inc., No. CV 19-02252 PA (SPx), 2020 WL 2027596 (C.D. Cal. Jan. 9, 2020) Kang alleged that P.F. Chang’s “employed a classic bait and switch tactic whereby it falsely labeled and advertised food products … Continue reading →

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Common sense can’t show materiality for damages purposes in Fifth Circuit

Posted on April 20, 2020 by rtushnet

Illinois Tool Works, Inc. v. Rust-Oleum Corporation, — F.3d —-, No. 19-20210, 2020 WL 1808871 (5th Cir. Apr. 9, 2020) The Fifth Circuit continues on its crusade to prevent false advertising disgorgement from being awarded. [I guess it has worse … Continue reading →

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