Author Archives: rtushnet

10th Circuit endorses presumption of Lanham Act false advertising injury in mostly two-player market

Posted on June 29, 2023 by rtushnet

Vitamins Online, Inc. v. Heartwise, Inc., — F.4th —-, 2023 WL 4189604, Nos. 20-4126, 21-4152 (10th Cir. Jun. 27, 2023) Proceedings below most recently blogged here. Vitamins Online sued Heartwise under the Lanham Act and Utah’s Unfair Competition Law for … Continue reading →

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And Taco Tuesday

Posted on June 28, 2023 by rtushnet

 Speaking of authenticity, here is a funny WSJ podcast–even if you don’t listen to the whole thing, it’s worth listening to Gregory Gregory claim he invented Taco Tuesday, the discussion of its appearance in the 1930s, and then the last … Continue reading →

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Fajita followup: geographic origin as inherently contested concept

Posted on June 28, 2023 by rtushnet

 Yesterday’s post about what every reasonable consumer of Mexican food knows sparked some interest in my household. It’s not a new observation that Twiqbal‘s common sense can involve things that are not actually common sense to all reasonable people, and … Continue reading →

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Ambiguity in consumer protection cases means something different than ambiguity in Lanham Act cases

Posted on June 27, 2023 by rtushnet

Would you believe I substantially shortened the analysis? La Barbera v. Olé Mexican Foods Inc., 2023 WL 4162348, No. EDCV 20-2324 JGB (SPx) (C.D. Cal. May 18, 2023) Granting reconsideration, the court reverses its previous ruling and dismisses the claims … Continue reading →

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A&E’s (c) and TM claims survive against former producer’s new version of cop show

Posted on June 26, 2023 by rtushnet

A&E Television Networks, LLC v. Big Fish Entertainment, LLC, 2023 WL 4053871, No. 22 Civ. 7411 (KPF) (S.D.N.Y. Jun. 16, 2023) The court refused to dismiss copyright and trademark claims based on copying of a TV show format, including the … Continue reading →

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materiality dispute avoids sj in literal falsity case (also no seller standing against ingredient supplier)

Posted on June 26, 2023 by rtushnet

World Nutrition Inc. v. Advanced Enzymes USA, 2023 WL 4105345, No. CV-19-00265-PHX-GMS (D. Ariz. Jun. 21, 2023) WNI and defendants AST/Specialty sell enzyme supplement products. WNI and AST sell directly to consumers, while Specialty is a wholesaler that sells to … Continue reading →

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Advertising injury policy’s IP exclusion means ROP claims aren’t covered

Posted on June 26, 2023 by rtushnet

Covington Specialty Insurance Company v. Omega Restaurant & Bar, LLC, — F.Supp.3d —-, 2023 WL 2720805, No. 2:21-cv-247 (E.D. Va. Mar. 30, 2023) This is fallout from one of the many right of publicity etc. lawsuits against clubs for advertising … Continue reading →

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ESG statements are commercial speech excluded from California’s anti-SLAPP law

Posted on June 21, 2023 by rtushnet

Hicks v. Grimmway Enters., Inc., 2023 WL 3829689, No. 22-CV-2038 JLS (DDL) (S.D. Cal. Jun. 5, 2023) Hicks alleged that defendant, a California agricultural corporation, misrepresented the environmental impact of its farming practices through its advertising and “Inaugural Report on … Continue reading →

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“sweetened with monk fruit” and “sugar free” plausibly suggest food is entirely/predominantly sweetened with monk fruit

Posted on June 20, 2023 by rtushnet

Scott v. Saraya USA, Inc., No. 22-cv-05232-WHO, 2023 WL 3819366 (N.D. Cal. Jun. 5, 2023) Scott alleged that Saraya’s representations that its granola and other products are “sweetened with monk fruit” or “monk fruit sweetened” were false and deceptive because … Continue reading →

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literally false material comparative ad avoids sj because of dispute about injury

Posted on June 20, 2023 by rtushnet

MacuHealth, LP v. Vision Elements, Inc., 2023 WL 3863341, No. 8:22-cv-199-VMC-JSS (M.D. Fla. Jun. 7, 2023) MacuHealth sells a nutritional supplement of the same name that is intended to maintain or improve eye health; Vision Elements is a competitor that … Continue reading →

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