Author Archives: rtushnet

3d Circuit gets descriptiveness right: it’s a matter of both the term and the goods/services

Engage Healthcare Communications, L.L.C. v. Intellisphere, L.L.C., — Fed.Appx. —-, 2019 WL 6170825, No. 19-1017 (3d Cir. Nov. 20, 2019) Panels in the Second and Ninth Circuits, which really ought to know better, have occasionally reasoned that a term is … Continue reading

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e-cigarette sellers must substantiate greater population-level safety to make “safer” claims

Nicopure Labs, LLC v. Food & Drug Admin., No. 17-5196 (D.C. Cir. Dec. 10, 2019) In the Tobacco Control Act, Congress gave the FDA additional authority to regulate tobacco because previous measures “failed adequately to curb tobacco use by adolescents.” … Continue reading

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lack of safety/higher failure rates plausibly meant products weren’t “compatible”

Straumann USA, LLC v. TruAbutment Inc., No. 8:19-cv-00878-JLS-DFM, 2019 WL 6887173 (C.D. Cal. Oct. 1, 2019) The parties compete in the market for dental implants, which are medical devices surgically implanted into the patient’s jaw bone to replace natural teeth … Continue reading

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calling business duration into question could actionably disparage its honesty

Giannone v. Giannone, 2019 WL 6910151, No. 16-cv-911 (E.D. Pa. Dec. 18, 2019) “A lamentable father-son conflict over a family plumbing business provides the backdrop for this Lanham Act case.” Joseph Giannone, Senior, failed to get summary judgment on his … Continue reading

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false claims about duration of business could be actionable

SPS Technologies, LLC v. Briles Aerospace, Inc., 2019 WL 6841992, No. CV 18-9536-MWF (ASx) (C.D. Cal. Oct. 30, 2019) The parties compete in the market for high-strength aerospace fasteners. SPS, using information that is allegedly confidential/proprietary to it, makes the … Continue reading

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you can’t plead false advertising to get around Dastar

Focal Point Films, LLC v. Sandhu, 2019 WL 7020209, No. 19-cv-02898-JCS (N.D. Cal. Dec. 20, 2019) (magistrate, by consent) Focal Point/Gibel sought a declaratory judgment that Gibel was the sole author of a documentary film called Sign My Name to … Continue reading

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statutory Lanham Act standing exists when advertiser is advertising but not yet selling

CareDx, Inc. v. Natera, Inc., 2019 WL 7037799, No. 19-662-CFC-CJB (D. Del. Dec. 20, 2019) (magistrate) A nicely reasoned opinion about impending competition as sufficient to find likely harm from false advertising. CareDx makes AlloSure, a patented kidney transplant surveillance … Continue reading

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