Author Archives: rtushnet

Second Circuit reverses literal falsity finding based on dispute over meaning of “brand”

Posted on October 6, 2025 by rtushnet

Zesty Paws LLC v. Nutramax Laboratories, Inc., — F.4th —-, No. 24-1810, 2025 WL 2810078 (2d Cir. Oct. 3, 2025) The court of appeals reverses the district court opinion discussed here, which had granted a preliminary injunction on Zesty’s Lanham … Continue reading →

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A couple of Third Circuit amicus briefs (AI training and false advertising harm)

Posted on October 3, 2025 by rtushnet

Thomson Reuters v. Ross, arguing that training is fair use. With Edward Lee of Santa Clara Law, Matthew Sag of Emory University, Pamela Samuelson of UC Berkeley School of Law, Christopher John Sprigman of New York University School of Law. And an … Continue reading →

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HomeVestors opinion shows that post-JDI Rogers v. Grimaldi can’t give security to titles

Posted on October 1, 2025 by rtushnet

HomeVestors of America, Inc. v. Warner Bros. Discovery, Inc., 2025 WL 2301911, No. 22-1583-RGA (D. Del. Aug. 8, 2025) Rogers v. Grimaldi no longer provides a path to early dismissal for many expressive uses in titles. For titles, it might … Continue reading →

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We have (less of) the meats: court mostly denies Arby’s motion to dismiss in misleading photos case

Posted on October 1, 2025 by rtushnet

Alongis v. Arby’s Restaurant Group, Inc., 2025 WL 2772810, 2:23-cv-6593 (NJC) (LGD) (N.D.N.Y. Sept. 29, 2025) The court declines to dismiss claims under the NY GBL that Arby’s photographs misrepresented (1) whether its roast beef was rare rather than fully … Continue reading →

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court dismisses popcorn calorie/slack fill claims for failure to account for popcorn’s compressibility

Posted on October 1, 2025 by rtushnet

Borgen v. Hershey Salty Snack Sales Co., 2025 WL 2753734, No. 24-cv-1635-BJC-JLB (S.D. Cal. Sept. 2, 2025) I just like the facts here: Plaintiffs alleged that defendants’ SkinnyPop popcorn has too much slack fill. In particular, they alleged that the … Continue reading →

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Audible’s expiring credits covered by Washington’s gift certificate law, court rules

Posted on September 30, 2025 by rtushnet

Hollis v. Audible, Inc., 2025 WL 2689123, No. 2:24-cv-01999-TL (W.D. Wash. Sept. 19, 2025) State consumer protection laws sometimes address very specific topics; this case addresses the intersection of one such law with Audible’s membership, which provides customers (including me) … Continue reading →

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pharmacos face judicial resistance to claims against compounding pharmacies for weight loss drugs

Posted on September 29, 2025 by rtushnet

Three cases showing aspects of the challenges, only one of which even partially survives: Novo Nordisk, Inc. v. Brooksville Pharm. Inc., 785 F.Supp.3d 1123 (M.D. Fla. 2025) Novo Nordisk sells FDA-approved drugs containing semaglutide, Wegovy, Ozempic, and Rybelsus. Brooksville is … Continue reading →

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“tasting like a smooth whisky” is not a disclosure that there’s no whisky in the bottle

Posted on September 22, 2025 by rtushnet

Pizzaro v. Sazerac Co., 2025 WL 2682673, No. 23-CV-2751 (KMK), No. 23-CV-4323 (KMK) (S.D.N.Y. Sept. 18, 2025) The court certifies a class of purchasers alleging deception in their purchases of Fireball and Parrot Bay malt beverage (16.5% ABV) that looked … Continue reading →

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mislabeling nut ingredients doesn’t justify class action because not everyone has nut allergies

Posted on September 17, 2025 by rtushnet

Fukaya v. Daiso California LLC, No. 23-cv-00099-RFL, 2025 WL 2644747 (N.D. Cal. Sept. 15, 2025) Fukaya, who is allergic to tree nuts, alleged that Daiso failed to properly label its pre-packaged food products as containing tree nuts on its English-language … Continue reading →

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sending DMCA notices about uncopyrightable work might be willful blindness, or not

Posted on September 17, 2025 by rtushnet

Leszczynski v. Kitchen Cube LLC, 2025 WL 2551098, No. 8:23-cv-01698-MEMF-ADS (C.D. Cal. Apr. 4, 2025) Previous discussion. I find this case interesting because of the underlying gadget, the Kitchen Cube, which has depressions on different sides corresponding to different standard … Continue reading →

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