Category Archives: damages

Presumption of injury saves Lanham Act monetary award

Posted on August 5, 2015 by rtushnet

General Steel Domestic Sales, LLC v. Chumley, — Fed.Appx. —-, 2015 WL 4591924, Nos. 14–1119, 14–1121 (10th Cir. July 31, 2015)   Chumley formerly worked for General Steel, then founded Armstrong after an unfriendly parting.  The parties compete to sell … Continue reading →

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failure to show damage from accusation of falsity dooms counterclaims

Posted on June 4, 2015 by rtushnet

Cascade Yarns, Inc. v. Knitting Fever, Inc., 2015 WL 3407882, No. C10–861 (W.D. Wash. May 27, 2015) This five-year odyssey ends with a whimper.  Cascade and KFI sell luxury yarns; Cascade initially sued KFI for mislabeling the fiber content of … Continue reading →

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ANA conference: litigating Lanham Act damages

Posted on April 3, 2015 by rtushnet

Litigating Damages Claims In Lanham Act False Advertising Cases   Alexander Kaplan, Partner, Proskauer Rose LLP: Case law on damages can be tricky/inconsistencies between circuits.  What’s recoverable?  1117(a): D’s profits; damages sustained by P; costs of action.  Statute doesn’t prevent … Continue reading →

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statements by competitors are not matters of public interest

Posted on January 2, 2015 by rtushnet

Broadspring, Inc. v. Congoo, LLC, 2014 WL 7392905, No. 13–CV–1866 (S.D.N.Y. Dec. 29, 2014)   As part of resolving various evidentiary issues before trial between these online advertising service competitors, the court gave guidance on some more general false advertising … Continue reading →

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It’s all about control: how to get a survey excluded

Posted on December 11, 2014 by rtushnet

First Data Merchant Services Corp. v. SecurityMetrics, Inc., No. RDB–12–2568, 2014 WL 6871581 (D. Md. Dec. 3, 2014) This is a motion to exclude in a false advertising/antitrust case. “This origins of this contentious case lie in a soured business … Continue reading →

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Koch and wine: punitive damages for wine fraud reduced but allowed

Posted on November 17, 2014 by rtushnet

Koch v. Greenberg, 14 F. Supp. 3d 247 (S.D.N.Y. 2014) There’s probably a good magazine article or two in this story.  William Koch, the “litigious younger brother” of Charles and David, bought over 2600 bottles of rare French wine consigned … Continue reading →

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Court declines to apply Lexmark to TM

Posted on October 8, 2014 by rtushnet

Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., 2014 WL 4843674, No. 8:10–CV–365 (D. Neb. Sept. 29, 2014) This is a default so it’s just what the court decided to examine with respect to the facts; nonetheless there … Continue reading →

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FTC can presume consumer reliance in contempt proceedings

Posted on August 13, 2014 by rtushnet

FTC v. BlueHippo Funding, LLC, No. 11-374-cv (2d Cir. Aug. 12, 2014) (random side note: decided two and a half years after oral argument!) The FTC appealed the damages portion of a 2010 SDNY order granting in part the FTC’s … Continue reading →

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Second Circuit reiterates presumptions of harm, damages in literal falsity case

Posted on July 31, 2014 by rtushnet

Merck Eprova AG v. Gnosis S.p.A., No. 12‐4218 (2d Cir. July 29, 2014)  Merck won a false advertising case against Gnosis, and the court awarded it over $500,000 in damages, over $2 million in attorneys’ fees and costs, and prejudgment … Continue reading →

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Regression analysis is a plaintiff’s best friend

Posted on May 29, 2014 by rtushnet

Werdebaugh v. Blue Diamond Growers, 2014 WL 2191901,  No. 12–CV–2724 (N.D. Cal. May 23, 2014) I’m going to try, with probably limited success, to summarize results rather than reasoning for most of this consumer class action case in which certification … Continue reading →

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