Author Archives: rtushnet

unconscionability prevents enforcement of arbitration agreement for consumer claims

Cabatit v. Sunnova Energy Corp., No. C089576, — Cal.Rptr.3d —-, 2020 WL 8365909 (Ct. App. Dec. 31, 2020) California isn’t fond of mandatory consumer arbitration. Here, the court finds the arbitration agreement unconscionable and refuses to enforce it against a … Continue reading

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survey sustains false advertising claim alleging misleading use of military imagery

Mahindra & Mahindra Ltd. v. FCA US LLC, 2021 WL 323253, No. 18-cv-12645 (E.D. Mich. Feb. 1, 2021) Plaintiffs sued FCA for a judgment of noninfringement of the Jeep grille design in its Roxor vehicle (which dispute mainly took place … Continue reading

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Uber avoids taxi suit because of causation problems

Ezeokoli v. Uber Technol., Inc., 2021 WL 247975, No. A156445 (Cal. Ct. App. Jan. 26, 2021) Plaintiffs, a putative class of taxi drivers, lost this Lanham Act false advertising appeal because they couldn’t show that Uber’s allegedly false statements harmed … Continue reading

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Videos in conjunction with my advertising law class

 In this pandemic year, I’m experimenting with short videos as part of the pre-class materials. They generally elaborate on a point to set up class discussion. I’m sharing them because, as Tom Lehrer says, they might prove useful to some … Continue reading

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Book talk: global mandatory fair use via the Berne quotation right

Tanya Aplin & Lionel Bently, Global Mandatory Fair Use, AU Book Talk. Based on their new book. Art 10(1) Berne Convention: It shall be permissible to make quotations from a published work; mention shall be made of the source and … Continue reading

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surveys/expert evidence of deception still not required in consumer protection claims

Hawkins v. Kroger Co., 2021 WL 210843, No. 15cv2320 JM (AHG) (S.D. Cal. Jan. 11, 2021) Hawkins sued, with the usual California claims, because Kroger breadcrumbs said “0g Trans Fat Per Serving”  on the front and the nutrition label said … Continue reading

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when is a publisher sufficiently beholden to a manufacturer to engage in commercial speech?

Ariix, LLC v. NutriSearch Corp., No. 19-55343 (9th Cir. Jan. 22, 2021) Over a dissent, the court reverses the district court’s dismissal of a false advertising claim against a purportedly independent supplement guide that allegedly is linked, behind the scenes, … Continue reading

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Happy inauguration day to Redbubble in particular: 9th Cir. affirms functionality in Lettuce Turnip the Beet

LLTB LLC v. Redbubble, Inc., No. 19-16464 (9th Cir. Jan. 20, 2021) LTTB LLC sells t-shirts and other goods bearing its registered trademarks, the words and design, “LETTUCE TURNIP THE BEET.”  LTTB sued Redbubble for infringing by selling products containing … Continue reading

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Dastardly DoorDash fails to get restaurant complaint dismissed, including under UCL/FAL

Lona’s Lil Eats, LLC v. DoorDash, Inc., No. 20-cv-06703-TSH, 2021 WL 151978 (N.D. Cal. Jan. 18, 2021) (magistrate) This case addresses a topic that’s received broader media coverage than most advertising issues. The magistrate finds that Lona’s sufficiently alleged false … Continue reading

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WVa SCt immunizes religious schools and camps for false advertising about services

State ex rel. Morrisey v. Diocese of Wheeling-Charleston, 851 S.E.2d 755 (W.Va. 2020) In response to a certified question, the West Virginia Supreme Court, over a dissent, held that the AG could not sue the Diocese and a former bishop … Continue reading

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