Category Archives: preemption

IPSC: Other IP

Other IP  [Insert wry commentary about “fringe” fields like advertising law]   Sarah Burstein, The University of Oklahoma College of Law Reviving Ornamentality    Fed. Cir. killed the doctrine.  Statute says new, original, and ornamental designs can get a design … Continue reading

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What claims work when D allegedly drives P down in Google rank through copying?

Ryoo Dental, Inc. v. Han, 2015 WL 4208580, No. 15–308 (C.D. Cal. Jul. 9, 2015)   Ryoo Dental, a dental practice, had a website to promote its services, and allegedly spent considerable sums on “search engine optimization fees, photographing, editing, … Continue reading

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False claims of FDA approval actionable under Lanham Act and state law

Innovative Health Solutions, Inc. v. DyAnsys, Inc., 2015 WL 2398931, No. 14-cv-05207 (N.D. Cal. May 19, 2015)   IHS sells a medical device called P–STIM.  DyAnsys used to be the distributor of P-STIM in the US, but after it lost … Continue reading

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FDA pre-approval doesn’t bar Lanham Act false advertising claim against device

Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GMBH, No. 14 Civ. 00585, 2015 WL 2359467 (S.D.N.Y. Mar. 24, 2015)   Earlier discussion.  SPD argued that the FDCA barred Lanham Act false advertising claims against it because the FDA … Continue reading

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SDNY allows consumer "organic" claims to proceed

Segedie v. Hain Celestial Group, Inc., 2015 WL 2168374, No. 14–cv–5029 (S.D.N.Y. May 7, 2015)   Plaintiffs bought Earth’s Best food, body care, and home care products, and alleged that they were misleadingly labeled as “organic,” “natural,” or “all natural.”  … Continue reading

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District court largely upholds mandatory GE disclosures

Grocery Manufacturers Assoc. v. Sorrell, 2015 WL 1931142, No. 5:14–cv–117 (D. Vt. Apr. 27, 2015)   Relax, we’ll be here for a while.   Vermont passed a law, Act 120, requiring that manufacturers and retailers identify whether raw and processed … Continue reading

Posted in advertising, commercial speech, disclosures, first amendment,, preemption | Leave a comment

8th Circuit dismisses right of publicity claim as copyright preempted

Ray v. ESPN, Inc., No. 14-2117 (8th Cir. Apr. 22, 2015)   Steve “Wild Thing” Ray wrestled professionally in the Universal Wrestling Federation (UWF) from 1990 to 1994. ESPN obtained films of his wrestling matches and re-telecast them without his … Continue reading

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Reading list: class ascertainability & preemption of state sound recording public perf. rights

Geoffrey C. Shaw, Class Ascertainability, forthcoming, Yale Law J. (2015) Abstract:   In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules … Continue reading

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Preemption and dormant commerce clause challenges to Cal. Made in US law fail

Clark v. Citizens of Humanity, LLC, No. 14–CV–1404, 2015 WL 1600679 (S.D. Cal. Apr. 8, 2015)   Plaintiffs bought Citizens of Humanity jeans marked with “Made in the USA,” but alleged that the products contained component parts made outside the … Continue reading

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Primary jurisdiction didn’t warrant dismissal of "natural" claims, 9th Cir. says

Astiana v. Hain Celestial Group, Inc., No. 12-17596 (9th Cir. Apr. 10, 2015)   As the court of appeals introduced the case:   A product labeled “all natural” or “pure natural” likely evokes images of ground herbs and earth extracts … Continue reading

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