Author Archives: rtushnet

Primary jurisdiction doesn’t defeat supplement false advertising claim

Posted on July 13, 2016 by rtushnet

Nutrition Distribution LLC v. Custom Nutraceuticals LLC, No. CV-16-00173, 2016 WL 3654277 (D. Ariz. Jul. 8, 2016) The parties compete in the nutritional supplement market; defendant Custom sells Ostarine, a selective androgen receptor modulator (“SARM”) with effects similar to those … Continue reading →

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Volunteer moderator plausibly alleged to be agent of ISP for 230 purposes

Posted on July 13, 2016 by rtushnet

Enigma Software Gp. USA LLC v. Bleeping Computer LLC, 16 CV 57 (S.D.N.Y. Jul. 8, 2016) Eric Goldman probably won’t like this decision holding that a volunteer moderator may be treated as the ISP’s agent when the ISP gives enough … Continue reading →

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Discoverable falsity is immaterial to sophisticated consumers

Posted on July 12, 2016 by rtushnet

Reed Const. Data Inc. v. McGraw-Hill Companies, Inc., 638 Fed.Appx. 43 (10th Cir. 2016) Allegedly false claims about the quality of construction project data offered by these competitors were, even if false, not material to consumers, because the consumers were … Continue reading →

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Pom and circumstance: Pom Wonderful wins against Pur Pom

Posted on July 11, 2016 by rtushnet

Pom Wonderful LLC v. Hubbard, No. 13-06917, 2016 WL 3621281 (C.D. Cal. Jun. 29, 2016) Disclosure: I consulted with Pom on an earlier iteration of this litigation, though I have not been involved subsequently.  Even when courts in the Ninth … Continue reading →

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Questionable branding

Posted on July 11, 2016 by rtushnet

Not exactly on topic, but funny: Trader Joe’s often uses some signals about what national brands one can compare its house products to. Here, while Cheerios and Spaghettios are hard to confuse, the result is two different kinds of Joe’s … Continue reading →

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7th Circuit affirms rare right of publicity loss based on ad

Posted on July 11, 2016 by rtushnet

Martin v. Living Essentials, LLC, No. 16-1370, — Fed.Appx. —- (7th Cir. Jun. 30, 2016) The Seventh Circuit knocked this affirmance out quickly—here’s my discussion of the Jan. 2016 district court decision. Guinness World Records lists Johannes “Ted” Martin as … Continue reading →

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Update: that’s not actually the latest in B&B!

Posted on July 8, 2016 by rtushnet

My mistake. The latest is that after the ruling I just wrote about, there was a jury trial, which produced findings that (1) Hargis infringed the federally registered mark, (2) there were no damages/profits awardable from the infringement and the … Continue reading →

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Guess what the latest development in B&B v. Hargis is?

Posted on July 8, 2016 by rtushnet

B&B Hardware, Inc. v. Hargis Industries, Inc., No. 06CV01654, 2016 WL 3615833 (E.D. Ark. May 16, 2016) So, despite all the commotion surrounding this case, B&B forgot to renew its registration, which was duly cancelled.  A cautionary story for clients!  … Continue reading →

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It depends on what the meaning of “is” is: Section 15 declarations and pending challenges

Posted on July 7, 2016 by rtushnet

It turns out that Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V., 2016 WL 3034150,  No. 11–1623 (D.D.C. May 27, 2016), is even more of a hairball than I realized.  The thorny legal and factual issues as … Continue reading →

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Stunning scope of color TM leads court to cabin registrations

Posted on July 5, 2016 by rtushnet

Cedar Valley Exteriors, Inc. v. Professional Exteriors, Inc., No. 13-CV-2537 (D. Minn. Jun. 29, 2016) See DuetsBlog’s 2012 entry on what appears to be a related case, in which the plaintiff roofing/repair company sued a different competitor for using orange … Continue reading →

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