Category Archives: Uncategorized

Clearblue’s pregnancy test gets the blues: recall ordered for false advertising

Posted on July 6, 2015 by rtushnet

Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GMBH, 2015 WL 4002468, No. 14–CV–585 (S.D.N.Y. July 1, 2015)   A good old-fashioned false advertising case about pregnancy tests!  Prior opinion, refusing to dismiss the claims as preempted in light … Continue reading →

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UK ad regulator disapproves of negative puffery

Posted on July 1, 2015 by rtushnet

One big difference between the US and the EU in comparative advertising is that what we would consider negative puffery, like “overpriced,” the EU bans as not sufficiently objective.  In this ASA adjudication, the advertiser both ran a review site … Continue reading →

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Trademark scholars roundtable: the consumer in different contexts

Posted on June 30, 2015 by rtushnet

Session 3:  The Consumer in Different Trade Mark Contexts Do the questions that we have looked at in the first two sessions vary in different trademark and adjacent contexts? Is assessment of the reaction of the average consumer in trade … Continue reading →

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DMCA exemption followup

Posted on June 30, 2015 by rtushnet

The OTW/EFF response to the Copyright Office’s additional questions, filed yesterday, is now available.  Of note, the Copyright Office asked us about the extent to which K-12 students and teachers were covered by the existing noncommercial exemption. from Blogger http://ift.tt/1RPqZq8

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Fourth Circuit destroys literal falsity

Posted on June 30, 2015 by rtushnet

In re GNC Corp., — F.3d –, 2015 WL 3798174 (4th Cir. June 19, 2015)   Well, this is a terrible opinion that makes no sense.  In the Fourth Circuit, if reasonable experts disagree, it’s now impossible for one to … Continue reading →

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Trademark scholars roundtable: establishing the features of the consumer

Posted on June 29, 2015 by rtushnet

Session 2: Establishing the Features of the Consumer   The UK courts have in recent years been quite explicit that the consumer is a normative construct, a fiction, and a benchmark. What does this mean? Does the modifier “average” or … Continue reading →

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Trademark scholars roundtable: roles for the consumer in TM

Posted on June 29, 2015 by rtushnet

Seventh Trademark Scholars Roundtable: The Construction of the Consumer in Trade Mark Law   Session 1: Roles for the Consumer in Trade Mark Law What role does the “consumer” (whether “average” or “reasonable” or otherwise) play in trade mark law? … Continue reading →

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Ninth Circuit rejects class certification because ads differed

Posted on June 29, 2015 by rtushnet

Cabral v. Supple LLC, — Fed.Appx. —-, 2015 WL 3855142, No. 13–55943 (9th Cir. June 23, 2015)   The court of appeals vacated the certification of a class of purchasers of a dietary supplement. The certified class was “[a]ll persons … Continue reading →

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claim of “improved” version of competitor’s product not likely to confuse

Posted on June 29, 2015 by rtushnet

Arborjet, Inc. v. Rainbow Treecare Scientific Advancements, Inc., 63 F.Supp.3d 149 (D. Mass. 2014)   Arborjet sued Rainbow over an alleged breach of a sales agency agreement and won a preliminary injunction.  Arborjet makes insect and pest control products for … Continue reading →

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False patent marking isn’t material to business customers

Posted on June 29, 2015 by rtushnet

Pactiv, LLC v. Multisorb Technologies, Inc., 63 F.Supp.3d 832 (N.D. Ill. 2014)   Pactiv and Multisorb compete to sell oxygen absorbers—“packets of chemicals that react with moisture to absorb oxygen when placed inside food containers,” keeping food fresher longer. The … Continue reading →

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