Author Archives: rtushnet

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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DC Court of Appeals revives greenwashing suit against Coca-Cola

Posted on August 30, 2024 by rtushnet

Earth Island Institute v. Coca-Cola Co., — A.3d —-, 2024 WL 3976560, No. 22-CV-0895 (D.C. Aug. 29, 2024) Earth Island sued Coca-Cola under the D.C. Consumer Protection Procedures Act, alleging that Coca-Cola engages in deceptive marketing that “misleads consumers into … Continue reading →

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FTC lacks jurisdiction over nonprofits, even sham ones, court rules

Posted on August 30, 2024 by rtushnet

Federal Trade Commission v. Grand Canyon Education, Inc., — F.Supp.3d —-, 2024 WL 3825087, No. CV-23-02711-PHX-DWL (D. Ariz. Aug. 15, 2024) The court here holds that the FTC lacks §5 jurisdiction over a nonprofit, even if the nonprofit was in … Continue reading →

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Organic search results aren’t TM “use”

Posted on August 30, 2024 by rtushnet

Alsa Refinish LLC v. Walmart Inc., 2024 WL 3914512, No. 2:23-cv-08536-SVW-MAR (C.D. Cal. Jul. 31, 2024) In 2024, people are still bringing keyword advertising cases. Walmart wins summary judgment. Alsa sells paint, including chrome paint, and claims common-law rights in … Continue reading →

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6th Circuit applies JDI to political speech, but holds that disclaimers avoid confusion

Posted on August 30, 2024 by rtushnet

Libertarian National Committee, Inc. v. Saliba, No. 23-1856 (6th Cir. Aug. 28, 2024) Dissenting members of the Libertarian Party of Michigan maintain that they are the true Michigan affiliate. The Libertarian National Committee sued and the district court enjoined them … Continue reading →

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