Category Archives: commercial speech

scientific claims in ordinary ads aren’t protected opinion

Eastman Chemical Co. v. Plastipure, Inc., 2014 WL 7271384, No. 13–51087 (5th Cir. Dec. 22, 2014) A jury found that Plastipure (and defendant CertiChem) engaged in false advertising (discussed here).  The court of appeals affirmed the entry of an injunction.  … Continue reading

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you can’t a accuse competitor of lawbreaking when courts have ruled against you

Paul Davis Restoration, Inc. v. Everett, No. 14–C–1534, 2014 WL 7140038 (E.D. Wis. Dec. 12, 2014) Following a series of unsuccessful lawsuits with Paul Davis Restoration, Inc., Matthew Everett, a former franchisee, began running a radio ad: This is a … Continue reading

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restrictions on lawyer ads touting past results unconstitutional

Rubenstein v. Florida Bar, No. 14–CIV–20786, 2014 WL 6979574 (S.D. Fla. Dec. 9, 2014) Florida bars attorney advertising from referring to past results, which a Bar task force held in 1997 were inherently misleading to laypeople, because cases that appear … Continue reading

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Reading list: facts versus opinions in mandatory disclosure

Daniel E. Herz-Roiphe, Stubborn Things: An Empirical Approach to Facts, Opinions, and the First Amendment From the intro: [This] essay reports the results of an original survey that presented respondents with the actual disclosures at issue in a number of … Continue reading

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Religion isn’t (yet) a defense to false advertising

State v. Valerie Saxion, Inc., 2014 WL 6839970, No. 02–13–00227 (Tex. Ct. App. Dec. 4, 2014) Valerie Saxion argued that her free speech (and RFRA) rights were being violated by the state’s pursuit of claims against her and her company … Continue reading

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Disparagement to suppliers doesn’t trigger Lanham Act

Neonatal Product Group, Inc. v. Shields, No. 13–CV–2601, 2014 WL 6685477 (D. Kan. Nov. 26, 2014) This is largely a patent case, in which defendants threatened Neonatal (dba Creche) with a lawsuit for patent infringement.  Creche sought a declaratory judgment … Continue reading

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bills, applications and manuals can be commercial speech

Heartland Payment Systems, Inc. v. Mercury Payment Systems, LLC, 2014 WL 5812294, No. C 14–0437 (N.D. Cal. Nov. 7, 2014) Heartland and Mercury compete to provide electronic payment processing to small and medium-sized merchants through point of sale (POS) systems, … Continue reading

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NFL Films protected by First Amendment against players’ right of publicity claims

Dryer v. National Football League, No. 09-2182 (D. Minn. Oct. 10, 2014) There are two alternatives when it comes to the right of publicity, it seems to me.  Either we will limp along with a special rule for video games … Continue reading

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statements to regulators aren’t commercial advertising

Presby Environmental, Inc. v. Advanced Drainage Systems, Inc., No. 13–cv–355, 2014 WL 4922986 (D.N.H. Sept. 30, 2014) Presby sued ADS, a competitor in the septic system product market, for allegedly violating a settlement agreement; I’m only going to address the … Continue reading

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A hologram and a straight-up application of Dastar

Pulse Entertainment Corp. v. David, No. CV 14-4732 (C.D. Cal. Sept. 17, 2014)  This case concerns a lifelike animation of Michael Jackson performing a previously unreleased song that appeared during the 2014 Billboard Music Awards and a related CNN interview … Continue reading

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