Author Archives: rtushnet

230 bars false advertising claim against antimalware provider

Posted on November 9, 2017 by rtushnet

Enigma Software Group USA LLC v. Malwarebytes Inc., No. 5:17-cv-02915, 2017 WL 5153698 (N.D. Cal. Nov. 7, 2017) Malwarebytes and Enigma compete in the anti-malware software market.  When Malwarebytes’s software detects an unwanted program, it displays a notification and asks … Continue reading →

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Ad intermediary lacks standing under Lexmark to challenge false ads

Posted on November 7, 2017 by rtushnet

Congoo, LLC v. Revcontent LLC, 2017 WL 5076397, No. 16-401 (D.N.J. Nov. 3, 2017) A rare case discussing Lexmark’s proximate cause requirement in some detail. Congoo operates an online ad business as Adblade, an aggregator that serves as an intermediary … Continue reading →

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Competitor can’t challenge compliance w/certification standards

Posted on November 6, 2017 by rtushnet

Board-Tech Electronic Co. v. Eaton Electric Holdings LCC, 2017 WL 4990659, No. 17-cv-5028 (S.D.N.Y. Oct. 31, 2017) Board-Tech accused its competitor in the light switch market, Eaton, of false advertising because, while Eaton was authorized to apply the “UL” certification … Continue reading →

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“look like new forever” might not be puffery in context of technological innovation claims

Posted on November 3, 2017 by rtushnet

EP Henry Corp. v. Cambridge Pavers, Inc., 2017 WL 4948064, No. 17-1538  (D.N.J. Oct. 31, 2017) Disclosure: I consulted on this case.  EP Henry and Cambridge compete in the market for concrete pavingstones. Cambridge made superiority such as “only Cambridge … Continue reading →

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Consumers can’t recover for GM’s self-tarnishment

Posted on October 31, 2017 by rtushnet

In re General Motors LLC Ignition Switch Litigation, — F.Supp.3d —- 2017 WL 2839154, No. 14–MD–2543 (S.D.N.Y. Jun. 30, 2017) This multidistrict litigation arose from the 2014 recall by General Motors LLC (New GM) of General Motors (GM) vehicles that … Continue reading →

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Just in time for Halloween, a Reese’s question

Posted on October 31, 2017 by rtushnet

Should Reese’s object to the following description of candy molds? The “Reese’s Shape” version of the tartlet/candy mold Nominative fair use? from Blogger http://ift.tt/2gQoieM

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Initial decision in FTC 1-800 case finding that anti-keyword agreements violated antitrust law

Posted on October 31, 2017 by rtushnet

Agreed-on limits on advertising, like agreed-on limits on other inputs, risk being a per se violation of the antitrust laws.  Here, a blanket ban, including a negative keyword requirement (so that someone bidding on “contacts” wouldn’t get ads run against … Continue reading →

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Public disclosure of private facts

Posted on October 27, 2017 by rtushnet

Setting FERPA aside, does Taiwan Jones have any claim based on the viral tweet about his failed midterm?  (Skepticism here.) from Blogger http://ift.tt/2yTyE5W

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Website copying allegations allow potpourri of claims

Posted on October 27, 2017 by rtushnet

DHI Group, Inc. v. Kent, No. 16-1670, 2017 WL 4837730 (S.D. Tex. Oct. 26, 2017) DHI and Oilpro compete in the market for websites for oil and gas professionals that include job postings. DHI filed a lawsuit against Oilpro and … Continue reading →

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Likely success & irreparable harm still doesn’t justify ex parte TRO against false ad. given counterspeech

Posted on October 27, 2017 by rtushnet

Verified Nutrition, LLC v. Sclar, 2017 WL 4785948, No. 17-cv-07499 (C.D. Cal. Oct. 23, 2017) Verified sells ProstaGenix, which is “an all-natural supplement with a proprietary form of Beta-sitosterol” (BetaRexin). Verified primarily advertises ProstaGenix through an infomercial featuring Larry King, … Continue reading →

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