Category Archives: Uncategorized

court doesn’t find consumer protection claim over “sweet cream” plausible without survey; dictionaries insufficient

Posted on May 19, 2023 by rtushnet

Sneed v. Ferrero U.S.A., Inc., — F.Supp.3d —-, No. 22 CV 1183, 2023 WL 2019049 (N.D. Ill. Feb. 15, 2023) Courts in consumer protection cases reject surveys with abandon when they don’t agree with the results, but may also demand … Continue reading →

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if an allegedly falsely advertised product isn’t useless, P may have standing to seek injunctive relief

Posted on May 19, 2023 by rtushnet

Perez v. Bath & Body Works, LLC, No. 21-cv-05606-BLF, 2023 WL 3467207 (N.D. Cal. May 15, 2023) Interesting analysis of standing for injunctive relief: Where the product is a useful one, the court finds standing based on a desire to … Continue reading →

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Why do people fall for pyramid schemes? FTC v. Noland offers examples

Posted on May 19, 2023 by rtushnet

 FTC v. Noland, 20-cv-00047-DWL (D. Ariz. May 11, 2023) The decision in FTC v. Noland is notable for its discussion of the testimony of a number of witnesses supporting the defendant who seem to have been largely victims of the … Continue reading →

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Apple v. Corellium out: 11th Cir. finds copying for security research transformative

Posted on May 9, 2023 by rtushnet

Apple v. Corellium, Inc., No. 21-12835 (11th Cir. May 8, 2023) The Eleventh Circuit affirmed the core finding that Corellium’s copying of iOS for security research purposes was fair use, but vacated and remanded for further analysis of contributory infringement … Continue reading →

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Trademark and Unfair Competition Scholarship Roundtable 2023 Reminder: Submissions Due May 15, 2023

Posted on May 8, 2023 by rtushnet

The Engelberg Center on Innovation Law & Policy will host this year’s Trademark and Unfair Competition Scholarship Roundtable. The Roundtable is designed to be a forum for the discussion of current trademark and right of publicity scholarship, covering a range … Continue reading →

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Peloton music library class action fails because consumers probably didn’t see the claim

Posted on May 3, 2023 by rtushnet

Passman v. Peloton Interactive, Inc., 2023 WL 3195941, No. 19-cv-11711 (LJL) (S.D.N.Y. May 2, 2023) Interesting discussion of the way in which the objective reasonable consumer standard allows consumers classes to bring certain probabilistic claims, where some consumers might have … Continue reading →

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Second Circuit finds “therapeutic grade”/physical effects claims for essential oils falsifiable; suggests that lack of substantiation violates NY law

Posted on May 3, 2023 by rtushnet

MacNaughton v. Young Living Essential Oils, LC, 2023 WL 3185045, No. 22-0344, — F.4th — (2d Cir. May 2, 2023) In 2020, NAD found that Young Living’s claims that its essential oils are “therapeutic-grade” and impart physical and/or mental health … Continue reading →

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Pandemic art kit didn’t infringe artist’s rights

Posted on May 2, 2023 by rtushnet

 Keck v. Mix Creative Learning Center, LLC, No. 4:21-CV-00430, 2022 WL 19691177 (S.D. Tex. Dec. 19, 2022) Technically, the trademark analysis here is weird (the parties agreed that the copyright fair use analysis would determine the trademark fair use analysis; … Continue reading →

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“same” claim was literally false where probiotics had different strains and different profiles

Posted on May 2, 2023 by rtushnet

ExeGi Pharma, LLC v. Brookfield Pharmaceuticals, LLC, — F.Supp.3d —-, 2023 WL 3142311, No. 20-CV-192-JPS (E.D. Wis. Mar. 21, 2023) ExeGi sued Brookfield for state and federal false advertising/tortious interference. The court here resolves only the Lanham Act claims, partially … Continue reading →

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in a Lanham Act (false advertising) case, presumptions cannot substitute for Article III injury

Posted on April 26, 2023 by rtushnet

TocMail, Inc. v. Microsoft Corp., — F.4th —-, 2023 WL 3070085, No. 22-10223 (11th Cir. Apr. 25 2023) Previous district court opinion allowing Lanham Act false advertising claims to proceed against Microsoft; applying the Article III analysis that doesn’t (yet?) … Continue reading →

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