Author Archives: rtushnet

5th Circuit allows image-based tobacco warnings in barest nod to consistency on compelled commercial speech

Posted on March 25, 2024 by rtushnet

R J Reynolds Tobacco Co. v. Food & Drug Admin., 2024 WL 1208111, — F.4th —-, No. 23-40076 (5th Cir. Mar. 21, 2024) The sudden shift in the political valence of the commercial speech doctrine strikes again! The Fifth Circuit … Continue reading →

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Nominative fair use requires D to prevail on all 3 factors in 9th Circuit, district court concludes

Posted on March 21, 2024 by rtushnet

Axon Enterprise, Inc. v. Luxury Home Buyers, LLC, — F.Supp.3d —-, No.: 2:20-cv-01344-JAD-MDC (D. Nev. Jan. 16, 2024) The court grants plaintiff’s motion for reconsideration of parts of this case, discussed previously. Axon alleged that LHB infringed Axon’s “Taser” mark. … Continue reading →

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D’s consumer survey defeats class action about relevance of geographic origin of water for brewing beer

Posted on March 21, 2024 by rtushnet

Peacock v. Pabst Brewing Co., LLC, 2024 WL 1160687, No. 2:18-cv-00568 DJC CKD (E.D. Cal. Mar. 18, 2024) Interesting defense-side use of surveys in this consumer protection case. Peacock alleged that Pabst violated consumer protection law by marketing “The Original … Continue reading →

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Another “buy” button lawsuit over digital licenses continues

Posted on March 21, 2024 by rtushnet

In re Amazon Prime Video Litig., 2024 WL 1138906, No. 2:22-cv-00401-RSM (W.D. Wash. Mar. 15, 2024) This putative class action alleged that Amazon overcharged and “[d]eceived consumers by misrepresenting that it was selling them Digital Content when, in fact, it … Continue reading →

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CFP: Trademark and Unfair Competition Scholarship Roundtable 2024

Posted on March 21, 2024 by rtushnet

The Trademark and Unfair Competition Scholarship Roundtable co-hosted by Harvard, NYU, and the University of Pennsylvania will take place this year at Harvard. The Roundtable is designed to be a forum for the discussion of current trademark, false advertising, and … Continue reading →

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Earth, Wind & Infringement: TM owner succeeds against overclaiming “reunion” band

Posted on March 14, 2024 by rtushnet

Earth, Wind & Fire IP, LLC v. Substantial Music Group LLC, — F.Supp.3d —-, 2024 WL 1025265, No. 23-20884-CIV-MORENO (S.D. Fla. Mar. 1, 2024) With the ordinary multifactor confusion test, courts position themselves as looking for empirics (even though the … Continue reading →

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calling an accepted Rule 68 offer a judgment of infringement could be defamatory

Posted on March 14, 2024 by rtushnet

Double Diamond Distribution Ltd. v. Crocs, Inc., 2024 WL 1051951No. 23-cv-01790-PAB-KAS (D. Colo. Mar. 11, 2024) I have a long-running interest in Rule 68 offers of judgment, and this case involves an interaction with false advertising law! The parties compete … Continue reading →

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reasonable consumers aren’t required to know collagen can’t be vegan

Posted on March 8, 2024 by rtushnet

Kandel v. Dr. Dennis Gross Skincare, LLC, 2024 WL 965621, No. 23-cv-01967 (ER) (S.D.N.Y. Mar. 5, 2024) Similar California litigation at a later stage. Kandel alleged that Gross Skincare deceptively labeled and advertised its skincare products as containing collagen when, … Continue reading →

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small competitor lacks standing against big one’s nondisparaging advertising

Posted on March 7, 2024 by rtushnet

HomeLight, Inc. v. Shkipin, — F.Supp.3d —-, 2024 WL 940089 (N.D. Cal. Mar. 5, 2024) Sometimes, courts are very generous to competitors in presuming Lanham Act standing—as with the recent Meta ruling—and sometimes they aren’t. I have yet to detect a … Continue reading →

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Second Circuit affirms holding that asterisk/fine print sufficiently clarifies ambiguous claim

Posted on March 6, 2024 by rtushnet

Montgomery v. Stanley Black & Decker, Inc., 2024 WL 939151, No. 23-735-cv (2d Cir. Mar. 5, 2024) Plaintiffs sued defendant (Craftsman) for deceptive business practice claims under both the New York General Business Law (NYGBL), and the Virginia Consumer Protection … Continue reading →

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