Author Archives: rtushnet

even after default, court may constrain recovery in competitive market

Posted on October 16, 2024 by rtushnet

KHN Solutions LLC v. Shenzhen City Xuewu Feiping Trading Co., No. C 20-07414 WHA, 2024 WL 4351861 (N.D. Cal. Sept. 30, 2024) I don’t usually blog default judgments, but this one was interesting. It granted interim relief against Amazon.com, impounding … Continue reading →

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false “patented/proprietary/exclusive” claims can be actionable despite Dastar

Posted on October 16, 2024 by rtushnet

Crocs, Inc. v. Effervescent, Inc., No. 2022-2160 (Fed. Cir. Oct. 3, 2024) Crocs sued competitors for patent infringement; defendant Dawgs counterclaimed for false advertising about the characteristics of the primary material Crocs uses to make its footwear products, a material … Continue reading →

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For-profit company can republish ASTM standards incorporated by reference into law

Posted on October 16, 2024 by rtushnet

Am. Soc. for Testing & Materials v. UpCodes, Inc., No. 24-1895 (E.D. Pa. Oct. 2, 2024) ASTM, which produces technical standards, sued UpCodes  for providing free online access to unauthorized copies of ten ASTM standards, all of which have been … Continue reading →

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republishing scientific study to prospective customers isn’t protected opinion

Posted on October 15, 2024 by rtushnet

Advance Dx, Inc. v. YourBio Health, Inc., — F.Supp.3d —-, 2024 WL 4393314, No. 24-10595-WGY (D. Mass. Oct. 3, 2024) Advance sued YourBio, which competes in the market for at-home medical device testing patients’ level of anti-Mullerian hormone, for false … Continue reading →

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9th Circuit refuses to kick out claim over benzene in sunscreen on standing

Posted on October 15, 2024 by rtushnet

Bowen v. Energizer Holdings, Inc., — F.4th —-, 2024 WL 4352496, No. 23-55116 (9th Cir. Oct. 1, 2024) Bowen sued Energizer for false advertising, alleging that its Banana Boat sunscreen was adulterated with dangerous levels of benzene, a carcinogen that … Continue reading →

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Revisiting the Silvertop banana costume case

Posted on September 23, 2024 by rtushnet

Silvertop v. Kangaroo (3d Cir. 2019) held that a banana costume was both copyrightable and infringed: In holding that the costume was protectable, the Third Circuit reasoned: Although a banana costume is likely to be yellow, it could be any  … Continue reading →

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“natural” class certified based in part on internal acknowledgement of materiality and potential falsity

Posted on September 20, 2024 by rtushnet

Drake v. Bayer Healthcare LLC, 2024 WL 4204921, No. 22-cv-1085-MMA (JLB) (C.D. Cal. Sept. 16, 2024) Plaintiffs alleged that Bayer falsely advertised One A Day Natural Fruit Bites Multivitamin products as “natural” even though they “contain non-natural, synthetic ingredients.” They … Continue reading →

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Copyright preemption in trade dress claims?

Posted on September 20, 2024 by rtushnet

Scotts Company LLC v. SBM Life Science Corp., — F.Supp.3d —-, No. 2:23-cv-1541, 2024 WL 4217446 (S.D. Ohio Sept. 18, 2024) Scotts makes consumer lawn, garden, pesticide, and insecticide products, including under the “ORTHO” brand. Scotts alleged rights in its … Continue reading →

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“Made in the USA” materiality showing requires evidence, not just interested witness testimony

Posted on September 13, 2024 by rtushnet

Illinois Tool Works Inc. v. J-B Weld Co., No. 3:19-cv-1434 (JAM), 2024 WL 4117244 (D. Conn. Sept. 9, 2024) The parties compete in the sale of “chemical bonding products marketed for home and automotive use.” Here, the court kicks out … Continue reading →

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Engagement rings in the news

Posted on September 6, 2024 by rtushnet

 I’m quoted in this story about a dispute in front of the Massachusetts Supreme Judicial Court this week. In the courts of talking to the reporter, I learned that there have been a couple more state supreme court cases since I … Continue reading →

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