Author Archives: rtushnet

publicizing a falsely obtained injunction can be false advertising

Posted on May 28, 2014 by rtushnet

Peek v. Whittaker, 2014 WL 2154965, No. 2:13–cv–O1188 (W.D. Pa. May 22, 2014) The court sets the stage: “This case is the latest skirmish in the on-going battle between two carpet-cleaning rivals, and is the federal court spill-over of their … Continue reading →

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Green (yellow) marketing: nonprofit’s claims against Chiquita survive

Posted on May 28, 2014 by rtushnet

Water & Sanitation Health, Inc. v. Chiquita Brands Int’l, Inc., No. C14–10, 2014 WL 2154381 (W.D. Wash. May 22, 2014) Chiquita buys millions of pounds of bananas per year, including from a company named COBIGUA in Guatemala.  Chiquita made a … Continue reading →

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Ninth Circuit revives consumer claims against Sony

Posted on May 27, 2014 by rtushnet

In re Sony PS3 “Other OS” Litig., 551 Fed.Appx. 916, No. 11–18066 (9th Cir. Jan. 6, 2014) (belated; just showed up in Westclip) The court of appeals partially reversed the dismissal of plaintiffs’ claims against Sony for disabling the ability … Continue reading →

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"generic" claims may be governed by FDA standard regardless of regulatory status

Posted on May 27, 2014 by rtushnet

Mission Pharmacal Co. v. Virtus Pharmaceuticals, LLC, 2014 WL 2119237, No. 5:13–CA–176 (W.D. Tex. Apr. 28, 2014) (magistrate judge, report & recommendation adopted) This started as a patent infringement suit and added false advertising; the opinion here denies summary judgment … Continue reading →

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all confusion is actionable but some doesn’t count

Posted on May 27, 2014 by rtushnet

Yes, I know that’s contradictory, but it’s a result of expansive doctrine which courts then seek to cabin by finding reasons to disregard certain evidence–such as evidence here that people in a sophisticated business still made errors about which entitty … Continue reading →

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Apple loses 230 defense to app privacy claims but still wins dismissal

Posted on May 27, 2014 by rtushnet

Opperman v. Path, Inc., 2014 WL 1973378,  No. 13-cv-00453 (N.D. Cal. May 14, 2014) This big class action against Apple and fourteen app developers has a lot of issues; I’ll try to focus on the consumer protection parts.  Plaintiffs alleged … Continue reading →

Posted in 230, california, http://schemas.google.com/blogger/2008/kind#post, privacy, standing | Leave a comment

Reading list: TM/false advertising surveys

Posted on May 23, 2014 by rtushnet

Trademark and Deceptive Advertising Surveys: Law, Science, and Design (ed. Shari Seidman Diamond & Jerre B. Swann, 2012): A collection of essays surveying various aspects of the law and offering the authors’ opinions on those aspects.  Of particular note: Itmar … Continue reading →

Posted in dilution, http://schemas.google.com/blogger/2008/kind#post, reading list, surveys, trademark | Leave a comment

Orphan works and myths of fair use

Posted on May 22, 2014 by rtushnet

Opponents of fair use have settled on a few simple arguments–fair use is too unpredictable, it’s too big (slight tension there), and it’s too American. Brandon Butler, Michael Carroll, and Peter Jaszi have taken the opportunity to rebut them in … Continue reading →

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Pom Wonderful and other misleading food claims

Posted on May 22, 2014 by rtushnet

Alan Levinovitz has a great article in Slate about scientific claims on food, which he argues are both misleading us and making us dumber.  You should read the whole thing, not least because he (perhaps with tongue in cheek?) calls … Continue reading →

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Unsubstantiated "more powerful" claim leads to more powerful recall

Posted on May 21, 2014 by rtushnet

Groupe SEB USA, Inc v. Euro-Pro Operating LLC, 2014 WL 2002126, No. 14–137 (W.D. Pa. May 15, 2014) (magistrate judge) Previous opinion.  Here, the court grants a preliminary injunction against certain statements found to be literally false. The parties compete … Continue reading →

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