Author Archives: rtushnet

Color and price aren’t actionable representations about product

Posted on May 2, 2014 by rtushnet

Boris v. Wal-Mart Stores, Inc., No. CV 13–7090 2014 WL 1477404 (C.D. Cal. Apr. 9, 2014) Plaintiffs sued Wal-Mart for deceptively marketing Equate Migraine and Equate Extra Strength Headache Relief (Equate ES).  Both allegedly have the exact same active ingredients … Continue reading →

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7-year ad campaign triggers Tobacco II’s reliance rules

Posted on May 1, 2014 by rtushnet

Dodson v. Tempur–Sealy International, Inc., No. 13–cv–04984, 2014 WL 1493676 (N.D. Apr. 16, 2014) Plaintiffs brought twenty-four claims under the laws of eleven states.  The alleged misrepresentations were that Tempur products are “formaldehyde free;” are “free of harmful VOCs [volatile … Continue reading →

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claims about conduct’s legality don’t violate Lanham Act

Posted on May 1, 2014 by rtushnet

Ameritox, Ltd. v. Millennium Laboratories, Inc., No. 11–cv–775, 2014 WL 1456347 (M.D. Fla. Apr. 14, 2014) Previously, there have been several opinions in this false advertising case between competitors in the urine testing market.  Here, Millennium won summary judgment on … Continue reading →

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Disparagement creates Lanham Act standing post-Lexmark

Posted on May 1, 2014 by rtushnet

First Mariner Bank v. Resolution Law Group, P.C., 2014 WL 1652550, No. MJG–12–1133 (D. Md. Apr. 22, 2014) FMB sued RLG for false advertising, unfair competition, and defamation, based on ads send to FMB customers.  The ads stated “that RLG … Continue reading →

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court certifies nationwide damages class for homeopathic products

Posted on May 1, 2014 by rtushnet

Forcellati v. Hyland’s, Inc., No. CV 12–1983, 2014 WL 1410264 (C.D. Cal. Apr. 9, 2014) Plaintiff sued for violation of New Jersey, California, and Missouri consumer protection laws (and breach of warranty), alleging that defendants misrepresented that their homeopathic products … Continue reading →

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claim proceeds against allegedly scammy publishing company now owned by Penguin

Posted on April 30, 2014 by rtushnet

James v. Penguin Group (USA) Inc., 2014 WL 1407697, No. 13 Civ. 2801 (S.D.N.Y. Apr. 11, 2014) Plaintiffs sued Penguin and Author Solutions, a Penguin company, for breach of contract, unjust enrichment, and violation of California, NY, and Colorado consumer … Continue reading →

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John Oliver covers Pom Wonderful and other false advertising issues

Posted on April 30, 2014 by rtushnet

And unsurprisingly, it’s a fantastic summary!  Starts around 15:27.  http://tushnet.blogspot.com/feeds/posts/default?alt=rss

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Bait and switch advertising isn’t TM infringement

Posted on April 30, 2014 by rtushnet

Sussman-Automatic Corp. v. Spa World Corp., — F. Supp. 2d —, 2014 WL 1651953 (E.D.N.Y. Apr. 25, 2014) Sussman sued Spa World and its principals for bait-and-switch advertising. They allegedly purported to sell Sussman’s “Mr. Steam” steam shower and spa … Continue reading →

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is noncompliance with FDA definitions inherently misleading?

Posted on April 30, 2014 by rtushnet

The FDA just issued a rule for nutritional claims about DHA and EPA. Explanation here. Some of the comments objected to the proposed rule on First Amendment grounds, and the FDA’s response is of interest. Basically, there’s a special statutory … Continue reading →

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eCigarette advertising: past is prologue

Posted on April 23, 2014 by rtushnet

Smithsonian National Museum of American History Dr. Robert Jackler, “Freedom to Vape”: Unregulated Exuberance in Electronic Cigarette Advertising (Dr. Jackler is talking to FDA and to Congress about the same issues on his trip to the East Coast) Note: I’m … Continue reading →

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