Author Archives: rtushnet

Once again surveys fail to aid consumer-plaintiffs in greenwashing case

Posted on June 20, 2023 by rtushnet

McGinity v. Procter & Gamble Company, — F.4th —-, 2023 WL 3911531, No. 22-15080 (9th Cir. Jun. 9, 2023) The court affirmed the dismissal of consumer protection claims against P&G products that used “Nature Fusion” in bold, capitalized text, with … Continue reading →

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Even counterfeiters can make nonconfusing uses where use clearly indicates compatibility rather than source

Posted on June 19, 2023 by rtushnet

JUUL Labs, Inc. v. Chou, — F.Supp.3d —-, No. CV 21-3056 DSF (PDx), 2023 WL 3886046 (C.D. Cal. Jun. 8, 2023) Juul, which makes vaping products including charging docks/cases and cables for the main devices, sued defendants for trademark infringement … Continue reading →

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Nominative fair use of a logo on a motion to dismiss: common sense has its day

Posted on June 19, 2023 by rtushnet

Xfinity Mobile v. Globalgurutech LLC, 2023 WL 3998459, No. CV-22-01950-PHX-SMB (D. Ariz. Jun. 14, 2023) I’ve been thinking a lot after Jack Daniel’s about the role of common sense in trademark. Judge Leval in scholarship, Trademark: Champion of Free Speech, … Continue reading →

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“for children” plausibly misleading where adult version is the same

Posted on June 19, 2023 by rtushnet

 Goodwin v. Walgreens, Co., No. CV 23-147-DMG (PDx), 2023 WL 4037175 (C.D. Cal. Jun. 14, 2023) This case is part of a wave of “false differentiation” cases that has been achieving at least some success in avoiding dismissal. Goodwin alleged … Continue reading →

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Target of TM takedown notices has Lanham Act standing to challenge automated notice provider’s ads claiming accuracy

Posted on June 19, 2023 by rtushnet

Unlimited Cellular, INC. v. Red Points Solutions SL, 2023 WL 4029824, No. 21-cv-10638 (NSR) (S.D.N.Y. Jun. 14, 2023) Unlimited, an “online non-authorized reseller of consumer products,” sued Red Points for defamation, tortious interference, and false advertising under state and federal … Continue reading →

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The fact/opinion divide: threat or menace? 9th Cir revives suit against Malwarebytes

Posted on June 6, 2023 by rtushnet

 Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., No. 21-16466 (9th Cir. Jun. 2, 2023) Courts generally seem more likely to find falsifiability instead of puffery when a speaker makes negative claims about rivals rather than positive claims about itself. … Continue reading →

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Are surcharge disclosures fair?

Posted on May 31, 2023 by rtushnet

 Seen on a recent menu. They reprinted it to include this information; they could have reprinted with the actual higher prices, and if they ever intend to drop the surcharge they’ll have to reprint again, so the only motivation seems … Continue reading →

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Mexican flag and “taste of Mexico” not enough to deceive reasonable consumers about non-Mexican origin, 2d Cir rules

Posted on May 23, 2023 by rtushnet

Hardy v. Olé Mexican Foods, Inc., 2023 WL 3577867, No. 22-1805 (2d Cir. May 22, 2023) (per curiam) There was a CD Cal case raising the same “false Mexican origin” claims with a different result. Hardy alleged that defendant’s La … Continue reading →

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court: there’s no right to jury trial when seeking only injunction/disgorgement in false advertising case

Posted on May 22, 2023 by rtushnet

Bluegreen Vacations Unlimited, Inc. v. Timeshare Lawyers P.A., 2023 WL 3510374, No. 20-24681-Civ-Scola (S.D. Fla. May 17, 2023) The court grants these timeshare plaintiffs’ motion for a bench trial, ruling that the Seventh Amendment doesn’t guarantee a jury trial in … Continue reading →

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alleged price bait-and-switch with large “processing fee” suffices to plead Lanham Act false advertising

Posted on May 22, 2023 by rtushnet

New Vision Unlimited, LLC v. Glasses USA, Inc., 2023 WL 3535386, No. 22-22534-Civ-Scola (S.D. Fla. May 18, 2023) New Vision, an eye-care professional and provider of optical goods and services, including contact lens fittings and contact lens sales with seven … Continue reading →

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