Author Archives: rtushnet

it’s not defamatory to conflate 2 legally distinct entities when unity is what they wanted consumers to perceive

Posted on October 4, 2018 by rtushnet

RainSoft v. MacFarland, No. 15-432 WES, 2018 WL 4696737 (D.R.I. Sept. 30, 2018) MacFarland runs lazymanandmoney.com, where he blogs about companies who provide consumer products and services. He and his wife “sat through an in-home demonstration of RainSoft’s water-treatment products.” … Continue reading →

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allegedly perfidious salesman protected from passing off liability, but might have engaged in false advertising

Posted on October 4, 2018 by rtushnet

Burton v. Label, LLC, No. 15-CV-5793 (VSB), 2018 WL 4759735 (S.D.N.Y. Sept. 30, 2018) Label, founded by the Millers, sells bespoke and custom men’s clothing throughout the United States. Schwartzman (for whom Burton is the trustee) worked for Label as … Continue reading →

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Amazon not liable for use of TM in review

Posted on October 4, 2018 by rtushnet

Sen v. Amazon.com, Inc., 2018 WL 4680018, No. 16-CV-01486-JAH-JLB (S.D. Cal. Sept. 28, 2018) Sen owns the trademark “Baiden” for skin-exfoliation products. Amazon bought “Baiden” through Google’s AdWords program and on other search engines. In 2012, Sen sued Amazon for … Continue reading →

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Defamation, but not false advertising, claim survives against niche publisher that added wrong info about allegations of wrongdoing

Posted on October 4, 2018 by rtushnet

MiMedx Group, Inc. v. DBW Partners LLC, No. 17-1925 (JDB), 2018 WL 4681005 (D.D.C. Sept. 28, 2018) MiMedx, a seller of medical products, sued DBW, which offers business and regulatory analysis to paid subscribers, for libel, slander, defamation, false light … Continue reading →

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Non-TM owner can plead false advertising claim for confusing use of TM it used to own

Posted on September 27, 2018 by rtushnet

Desmond v. Taxi Affiliation Services LLC, 2018 WL 4589999, No. 17 C 8326 (N.D. Ill. Sept. 25, 2018) Desmond is the Chapter 7 Trustee for the Bankruptcy Estate of Yellow Cab Affiliation, a former Chicago taxicab affiliation with over 1600 … Continue reading →

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Another malware misattribution claim fails

Posted on September 27, 2018 by rtushnet

PC Drivers Headquarters, LP v. Malwarebytes, Inc., 2018 WL 2996897, No. 18-CV-234-RP (W.D. Tex. Apr. 23, 2018) PC Drivers “offers software designed to help customers optimize the processing speed of their computers and identify software drivers ready to be updated.” … Continue reading →

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Blast from the past: nominative fair use avant la lettre

Posted on September 27, 2018 by rtushnet

Polyglycoat Corp. v. Environmental Chemicals, Inc., 509 F.Supp. 36 (S.D.N.Y. 1980) Found this in an unrelated search and it made me think about the utility (if any) of the nominative fair use category. Plaintiff sued defendant for advertising of defendant’s … Continue reading →

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Pa. Supreme Court fixes ridiculously overbroad holding of puffery

Posted on September 26, 2018 by rtushnet

Commonwealth v. Golden Gate National Senior Care LLC, — A.3d —-, 2018 WL 4570102, No. 16 MAP 2017 (Pa. Sept. 25, 2018) The Pennsylvania Supreme Court reinstated a bunch of claims against a bunch of nursing homes under the state … Continue reading →

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modifying a false advertising injunction is justified when likelihood that claim is false has changed

Posted on September 26, 2018 by rtushnet

De Simone v. VSL Pharmaceuticals, Inc., No. TDC-15-1356, 2018 WL 4567111 (D. Md. Sept. 24, 2018) De Simone sought modification of a preliminary injunction governing statements it could make about a probiotic product, VSL#3 and its relationship to De Simone’s … Continue reading →

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falsity from former customer satisfies Lexmark standard; not so for once-potential customer

Posted on September 24, 2018 by rtushnet

Frompovicz v. Niagara Bottling, LLC, No.. 18-54, 2018 WL 4465879  (E.D. Pa. Sept. 18, 2018) Prior ruling covered here. Plaintiff (on behalf of a putative class) is a water extractor. Defendant Land is a directly competing extractor and the bottler/distributor … Continue reading →

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