Category Archives: Uncategorized

Legal Applications of Marketing Theory, part 1

Posted on May 3, 2019 by rtushnet

Jacob Gersen & Joel Steckel, Harvard Law & NYU Stern, Conference Introduction Steckel gave a talk on dilution years ago and RT tore him apart (sorry!); since then, he’s done work with Chris Sprigman to answer some of the Qs … Continue reading →

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false advertising claim based on alleged misbranding of drug as supplement fails

Posted on May 2, 2019 by rtushnet

Amarin Pharma, Inc. v. Int’l Trade Comm’n, Nos. 2018-1247, 2018-114, 2019 WL 1925649, — F.3d – (Fed. Cir. May 1, 2019) The court of appeals upheld the ITC’s decision not to institute an investigation into Amarin’s complaint of an unfair … Continue reading →

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Recommended podcast on multilevel marketing

Posted on May 2, 2019 by rtushnet

The Dream by Stitcher. Excellent look at how multilevel marketing companies succeed at avoiding regulation and at convincing enough people to try them—and convincing them that their subsequent failure is their own fault and not intrinsic to the model—to make … Continue reading →

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hijacking another’s webpage for competing service is bad

Posted on May 1, 2019 by rtushnet

Spy Dialer, Inc. v. Reya LLC, 2019 WL 1873296, No. ED CV 18-1178 FMO (SHKx) (C.D. Cal Mar. 18, 2019) The parties compete in the market for reverse phone lookups.  When a user accessed plaintiff’s Spydialer.com, malicious computer code allegedly … Continue reading →

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prisoner’s consumer protection claim against false advertising of music player should proceed

Posted on May 1, 2019 by rtushnet

Mendoza v. Inch, 2019 WL 1901811, No. 18cv66-RH/CAS (N.D. Fla. Feb. 20, 2019) (report & recommendation) Prisoners are an extremely vulnerable population; here a consumer protection claim may offer some hope despite the usual barriers to relief.  Mendoza alleged that … Continue reading →

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allegations of “use on a website” don’t plausibly allege TM confusion

Posted on May 1, 2019 by rtushnet

Blue Water Innovations, LLC v. Fettig, No. 18-60671-Civ-Scola, 2019 WL 1904589 (S.D. Fla. Mar. 8, 2019) Quick reminder that the Eleventh Circuit hasn’t formally recognized initial interest confusion.  That said, at least in a complaint with fewer problems, simply alleging … Continue reading →

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alcohol beverage maker has standing b/c D’s non-alcoholic label plausibly attracts alcohol drinkers too

Posted on April 30, 2019 by rtushnet

Tortilla Factory, LLC v. Makana Beverages, Inc., No. CV 18-2981-MWF (PLAx), 2018 WL 8130609 (C.D. Cal. Nov. 14, 2018) Tortilla Factory makes kombucha beverages under the brand name “Kombucha Dog.” Makana also makes kombucha drinks. Kombucha is “a fermented beverage … Continue reading →

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antitrust/false advertising claims against Keurig’s K-Cup conduct survive

Posted on April 30, 2019 by rtushnet

In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., 2019 WL 1789789, No. 14-MD-2542 (VSB) (S.D.N.Y. Apr. 22, 2019) Big antitrust litigation in which many claims survive; I’m only discussing the false advertising-relevant bits, but the basic antitrust claims under … Continue reading →

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Instagram hashtags aren’t nominative fair use because they’re visible to consumers

Posted on April 30, 2019 by rtushnet

Align Technol., Inc. v. Strauss Diamond Instruments, Inc., 2019 WL 1586776, No. 18-cv-06663-TSH (N.D. Cal. Apr. 12, 2019) Nominative fair use purports to be a test, but cases like this make me want to say that it’s a fairness judgment.  … Continue reading →

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competitor has standing to challenge use of certification mark

Posted on April 30, 2019 by rtushnet

Savvy Rest, Inc. v. Sleeping Organic, LLC, 2019 WL 1607585, No. 18CV00030 W.D. Va. Apr. 15, 2019) The parties compete in the market for mattresses and other bedding products. Savvy Rest alleged that Sleeping Organic violated the Lanham Act by … Continue reading →

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