Author Archives: rtushnet

ThermoLife continues mixed record in pleading competitive injury from other supplements

Posted on October 29, 2019 by rtushnet

ThermoLife International LLC v. Compound Solutions Inc., No. CV-19-01473-PHX-SMM, 2019 WL 5448804 (D. Ariz. Jul. 30, 2019) ThermoLife develops “amino acid nitrates used in dietary supplements to increase vasodilation,” and alleged that vasodilators are “included in nearly every pre-workout product … Continue reading →

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DuraBlend leather-ish label not misleading

Posted on October 29, 2019 by rtushnet

Razo v. Ashley Furniture Indus., Inc., No. 17-56770, 2019 WL 5543849, — Fed.Appx. —- (9th Cir. Oct. 28, 2019) Ashley preserved its summary judgment win in this putative class action asserting the usual California claims against furniture with leather-ish components. … Continue reading →

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implied claims of FDA approval actionable under Lanham Act

Posted on October 29, 2019 by rtushnet

Kurin, Inc. v. Magnolia Medical Technologies, Inc., 2019 WL 5422931, No.: 3:18-cv-1060-L-LL (S.D. Cal. Oct. 23, 2019) Kurin developed the Kurin Lock, a “specimen diversion device that reduces the risk of blood culture contamination and associated false positive blood culture … Continue reading →

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it’s hard to frame the right cause of action for Amazon seller-on-seller misbehavior

Posted on October 28, 2019 by rtushnet

Factory Direct Wholesale, LLC v. iTouchless Housewares & Products, Inc., 2019 WL 5423450, No. 19-CV-01228-LHK (N.D. Cal. Oct. 23, 2019) The parties compete to sell stuff on Amazon. They agreed to the Amazon Seller Agreement, which requires the seller to … Continue reading →

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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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