Author Archives: rtushnet

Creating a Facebook page for a rival and leaving fake reviews for them is a bad idea

Posted on October 28, 2019 by rtushnet

We often tell students that one risk of bringing a false advertising claim, as a competitor, is that there might be counterclaims if you don’t have your own house in order. Here, the plaintiff fails to give enough specifics of … Continue reading →

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law firm blog about somebody else’s case isn’t commercial speech

Posted on October 28, 2019 by rtushnet

Wexler v. Dorsey & Whitney, LLP, — F.Supp.3d —-, 2019 WL 5485265, No. 18-CV-3066-SJB (E.D.N.Y. Oct. 25, 2019) Eric Goldman’s coverage. Wexler, a lawyer proceeding pro se, sued Dorsey (a law firm that does defendant-side Telephone & Consumer Protection Act … Continue reading →

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Heart of darkness: hedonic regression damages model allows certification in flushable wipes case

Posted on October 28, 2019 by rtushnet

Kurtz v. Kimberly-Clark Corp., — F.Supp.3d —-, 2019 WL 5483510, Nos. 14-CV-1142, 14-CV-4090 (E.D.N.Y. Oct. 25, 2019) Here, the consumer class action concerns allegedly false advertising of “flushable” wipes that have generated municipal lawsuits around the country. After remand to … Continue reading →

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company claiming rights in “overhead doors” makes little headway against challenger

Posted on October 25, 2019 by rtushnet

OGD Equipment Co. v. Overhead Door Corp., No. 17-cv-00898-ALM-KPJ, 2019 WL 5390589 (E.D. Tex. Jul. 15, 2019) This is the magistrate judge’s R&R, subsequently adopted by the court. OGD is a Texas “residential and commercial door repair and installation company” … Continue reading →

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TM/ad text question of the day

Posted on October 25, 2019 by rtushnet

The shorthand rule in the US is that if you don’t use the competitor’s trademark in your ad text, you’re fine. What if you do? The below ad (which you get by searching “broken Garmin mounts”) isn’t an explicit statement, … Continue reading →

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TRO against insurer to provide information during open enrollment

Posted on October 24, 2019 by rtushnet

PeaceHealth v. Health Net Health Plan, Inc., 2019 WL 5386474, No. 6:19-cv-01648-MK (D. Ore. Oct. 21, 2019) Here, the court worries about granting a TRO as compelled speech even though the speech is quintessentially commercial and the need to protect … Continue reading →

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putative falsity about medical test not material to labs, but maybe to doctors

Posted on October 24, 2019 by rtushnet

Quidel Corp. v. Siemens Medical Solutions USA, Inc., No. 16-cv-3059-BAS-AGS, 2019 WL 5320390 (S.D. Cal. Oct. 21, 2019) A pair of opinions shows the importance of (1) defining the market and (2) being able to show materiality. The parties compete … Continue reading →

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Amicus in Dr. Seuss v. ComicMix

Posted on October 14, 2019 by rtushnet

Here. With Mark Lemley, Jessica Litman, Lydia Loren, Pam Samuelson, and Erik Stallman.  from Blogger https://ift.tt/2OMxfrJ

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incentivized reviews/targeted upvoting can be false advertising, court reiterates

Posted on October 14, 2019 by rtushnet

Vitamins Online, Inc. v. HeartWise, Inc., No. 13-CV-982 (D. Utah Sept. 24, 2019) Supplement industry behavior is wild.   Vitamins Online sells dietary supplements online, including on Amazon, using the name NutriGold. HeartWise, aka NatureWise, competes with NutriGold, including on Amazon, … Continue reading →

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incentivized reviews/targeted upvoting can be false advertising, court reiterates

Posted on October 14, 2019 by rtushnet

Vitamins Online, Inc. v. HeartWise, Inc., No. 13-CV-982 (D. Utah Sept. 24, 2019) Supplement industry behavior is wild.   Vitamins Online sells dietary supplements online, including on Amazon, using the name NutriGold. HeartWise, aka NatureWise, competes with NutriGold, including on Amazon, … Continue reading →

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