Category Archives: standing

Disparagement creates Lanham Act standing post-Lexmark

First Mariner Bank v. Resolution Law Group, P.C., 2014 WL 1652550, No. MJG–12–1133 (D. Md. Apr. 22, 2014) FMB sued RLG for false advertising, unfair competition, and defamation, based on ads send to FMB customers.  The ads stated “that RLG … Continue reading

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Statements to sellers of must-have component actionable under Lanham Act

TriStar Investors, Inc. v. American Tower Corp., No. 3:12–cv–0499, 2014 WL 1327663 (N.D. Tex. Apr. 3, 2014) Cell towers are mostly owned and operated by tower companies, which rent wireless carriers the right to locate equipment on their towers.  Most … Continue reading

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What does Lexmark mean for the "commercial advertising or promotion" test?

Goodman v. Does 1–10, No. 4:13–CV–139, 2014 WL 1310310 (E.D.N.C. Mar. 28, 2014) The first post-Lexmarkopinion I’ve seen, and a thoughtful one at that. The complaint alleged various defamation and unfair competition claims based on postings on a website,, … Continue reading

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It’s an ex-competitor: plaintiff whose service shuffled off this mortal coil lacks standing

Think Computer Corp. v. Dwolla, Inc., No. 13–CV–02054, 2014 WL 1266213 (N.D. Cal. Mar. 24, 2014) Think is a money service business (MSB) and developer of a mobile payment system platform called FaceCash, launched in April 2010.  Defendants were money … Continue reading

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tuna surprise: undisclosed slack fill was plausibly misleading

Hendricks v. StarKist Co., No. 13–cv–729, 2014 WL 1244770 (N.D. Cal. Mar. 25, 2014) Hendricks brought the usual California claims against Starkist alleging that its canned tuna products were underfilled (anywhere from 1.1% to 17.3% less tuna than there was … Continue reading

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"I wouldn’t have bought it if I’d known" is enough for standing, 9th Circuit says again

Galope v. Deutsche Bank National Trust Co., No. 12–56892, 2014 WL 1244279 (9th Cir. Mar. 27, 2014) The court of appeals reversed a grant of summary judgment in favor of Deutsche Bank and other defendants.  Galope adequately alleged that she … Continue reading

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We all stand: Static Control can sue

Lexmark International, Inc. v. Static Control Components, Inc., No. 12–873 (March 25, 2014) Justice Scalia, writing for a unanimous Court, affirmed the Sixth Circuit, in the process articulating a new standard: “To invoke the Lanham Act’s cause of action for … Continue reading

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I feel so extraordinary: Lexmark affirmed

Here.  My first Supreme Court citation!  And approving, no less!  More later.

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no Lanham Act standing for misrepresentation by seller to buyer

Nature’s Products, Inc. v. Natrol, Inc., 2013 WL 7738172, No. 11–62409 (S.D. Fla. Oct. 7, 2013) The parties had business dealings from the late 1990s through 2011. In 2001, they executed an open-ended indemnity agreement applying to any products Natrol … Continue reading

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retail purchases mean class isn’t ascertainable

Sethavanish v. ZonePerfect Nutrition Co., 2014 WL 580696, No. 12-2907 (N.D. Cal. Feb. 13, 2014) Another case finding that, because the product is cheap and people don’t keep purchase records, and because somebody might lie to get a piece of … Continue reading

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