Author Archives: rtushnet

FDCA doesn’t preempt false advertising suit based on claims about protein source

Posted on October 15, 2018 by rtushnet

Durnford v. MusclePharm Corp., — F.3d —-, 2018 WL 4938190, No. 16-15374 (9th Cir. Oct. 12, 2018) Durnford brought the usual California consumer claims against MusclePharm for making false or misleading statements about the protein in one of its supplements. … Continue reading →

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RipoffReport review isn’t “advertising or promotion,” without more evidence of reception

Posted on October 15, 2018 by rtushnet

Wilson v. AdvisorLaw LLC, No. 17-cv-1525-MSK, 2018 WL 4932088 (D. Colo. Oct. 11, 2018) Wilson and defendant Kennedy allegedly did business through corporate entities, Wilson Law Ltd. and AdvisorLaw LLC, respectively. The relationship ended badly, with Kennedy accusing Wilson, via … Continue reading →

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Former supplier can sue supplement maker for falsely implying FDA approval & making claims based on old ingredients

Posted on October 12, 2018 by rtushnet

In re Elysium Health-Chromadex Litig., 2018 WL 4907590, No. 17 Civ. 7394 (CM) (S.D.N.Y. Sept. 27, 2018)    Elysium, which makes dietary supplements, sued Chromadex, a former supplier, for false advertising under the Lanham Act, trade libel, deceptive business practices … Continue reading →

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Court presumes failure to comply w/FDA labeling rules to be misleading

Posted on October 12, 2018 by rtushnet

Campbell v. Freshbev LLC, 322 F.Supp.3d 330 (E.D.N.Y. 2018) Campbell bought several bottles of Freshbev juices at Whole Foods, allegedly relying on misrepresentations (1) that the juices were unpasteurized; (2) that the juices were cold-pressed; (3) that the juices were … Continue reading →

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Third Circuit holds that misrepresentation of safety isn’t actionable false advertising for consumables that didn’t cause individual harm

Posted on October 12, 2018 by rtushnet

In re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices & Liability Litig., 903 F.3d 278 (3d Cir. 2018) Plaintiff Estrada alleged that perineal use of Johnson & Johnson’s Baby Powder can lead to an increased risk of developing … Continue reading →

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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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