Author Archives: rtushnet

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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statutory Lanham Act standing exists when advertiser is advertising but not yet selling

Posted on December 27, 2019 by rtushnet

CareDx, Inc. v. Natera, Inc., 2019 WL 7037799, No. 19-662-CFC-CJB (D. Del. Dec. 20, 2019) (magistrate) A nicely reasoned opinion about impending competition as sufficient to find likely harm from false advertising. CareDx makes AlloSure, a patented kidney transplant surveillance … Continue reading →

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don’t bring a chef to a food class action

Posted on December 16, 2019 by rtushnet

Marotto v. Kellogg Co., No. 18 Civ. 3545 (AKH), 2019 WL 6798290, — F.Supp.3d —- (S.D.N.Y. Dec. 5, 2019) Here, the plaintiff’s status as a highly trained chef makes his class claims against Pringles dubious, but the class certification ultimately … Continue reading →

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court enjoins bar on “fake meat” labels; implications for FDA standards of identity?

Posted on December 16, 2019 by rtushnet

Turtle Island Foods SPC v. Soman, No. 4:19-cv-00514-KGB (E.D. Ark. Dec. 11, 2019) Unsurprisingly, the court here enjoins provisions of Arkansas law that tried to restrict the use of “meat” terms for meatless alternatives. The worrying part is that the … Continue reading →

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Content Moderation in an Age of Extremes

Posted on December 10, 2019 by rtushnet

Belatedly, here is a link to the written version of a talk I gave last year, Content Moderation in an Age of Extremes, in which I note that the digital millennium lasted ten years, that strange apps handing out badges … Continue reading →

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Court fixes mistake: Rogers applies to nonfiction titles

Posted on December 9, 2019 by rtushnet

IOW, LLC v. Breus, 2019 WL 6603948, No. CV18-1649-PHX-DGC (D. Ariz. Dec. 2, 2019) The court quite properly grants a motion for reconsideration of part of its earlier opinion, correctly applying Rogers v. Grimaldi/Empire to protect the title of a … Continue reading →

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Touting a paid-for report as if it were independent could be false advertising; public webpage was “advertising”

Posted on December 9, 2019 by rtushnet

Pegasystems, Inc. v. Appian Corp., — F.Supp.3d —-, 2019 WL 6560120, No. 19-11461-PBS (D. Mass. Dec. 5, 3019) Undisclosed sponsorship of a critical report from an apparently neutral source leads to a Lanham Act/state false advertising claim, which the court … Continue reading →

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